NetChoice v. Paxton

Case: 21-51178 Document: 00516474571 Page: 1 Date Filed: 09/16/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

September 16, 2022

No. 21-51178 Lyle W. Cayce

Clerk

NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing

business as NetChoice; Computer Communications

Industry Association, a 501(c)(6) non-stock Virginia Corporation

doing business as CCIA,

Plaintiffs—Appellees,

versus

Ken Paxton, in his official capacity as Attorney General of Texas,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:21-cv-840

Before Jones, Southwick, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge: *

A Texas statute named House Bill 20 generally prohibits large social

media platforms from censoring speech based on the viewpoint of its speaker.

The platforms urge us to hold that the statute is facially unconstitutional and

hence cannot be applied to anyone at any time and under any circumstances.

*

Judge Jones joins all but Part III.E and Part V.B.3 of this opinion.

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In urging such sweeping relief, the platforms offer a rather odd

inversion of the First Amendment. That Amendment, of course, protects

every person’s right to “the freedom of speech.” But the platforms argue

that buried somewhere in the person’s enumerated right to free speech lies a

corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the

platforms’ view, email providers, mobile phone companies, and banks could

cancel the accounts of anyone who sends an email, makes a phone call, or

spends money in support of a disfavored political party, candidate, or

business. What’s worse, the platforms argue that a business can acquire a

dominant market position by holding itself out as open to everyone—as

Twitter did in championing itself as “the free speech wing of the free speech

party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist

of “the modern public square,” Packingham v. North Carolina, 137 S. Ct.

1730, 1737 (2017), Twitter unapologetically argues that it could turn around

and ban all pro-LGBT speech for no other reason than its employees want to

pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First

Amendment right to censor what people say. Because the district court held

otherwise, we reverse its injunction and remand for further proceedings.

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I.

A.

This case involves HB 20, a Texas statute that regulates large social

media platforms. 1 The law regulates platforms 2 with more than 50 million

monthly active users (“Platforms”), such as Facebook, Twitter, and

YouTube. Tex. Bus. & Com. Code § 120.002(b). In enacting HB 20,

the Texas legislature found that the Platforms “function as common carriers,

are affected with a public interest, are central public forums for public debate,

and have enjoyed governmental support in the United States.” It further

found that “social media platforms with the largest number of users are

common carriers by virtue of their market dominance.”

Two sections of HB 20 are relevant to this suit. First is Section 7,

which addresses viewpoint-based censorship of users’ posts. Section 7

provides:

A social media platform may not censor a user, a user’s

expression, or a user’s ability to receive the expression of

another person based on:

1

The full text of HB 20 can be viewed here: https://perma.cc/9KF3-LEQX. The

portions of HB 20 relevant to this lawsuit are codified at Texas Business and

Commerce Code §§ 120.001–151 and Texas Civil Practice and Remedies

Code §§ 143A.001–08.

2

HB 20 defines “social media platform” to include “an Internet website or

application that is open to the public, allows a user to create an account, and enables users

to communicate with other users for the primary purpose of posting information,

comments, messages, or images.” Tex. Bus. & Com. Code § 120.001(1). The

definition expressly excludes internet service providers, email providers, and any “online

service, application, or website” that “consists primarily of news, sports, entertainment,

or other information or content that is not user generated but is preselected by the

provider,” and “for which any chat, comments, or interactive functionality is incidental to,

directly related to, or dependent on the provision of [that] content.” Id. § 120.001(1)(A)–

(C).

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(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user’s expression

or another person’s expression; or

(3) a user’s geographic location in this state or any part

of this state.

Tex. Civ. Prac. & Rem. Code § 143A.002(a). “Censor” means “to

block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal

access or visibility to, or otherwise discriminate against expression.” Id.

§ 143A.001(1). For Section 7 to apply, a censored user must reside in Texas,

do business in Texas, or share or receive expression in Texas. Id.

§ 143A.004(a)–(b).

This prohibition on viewpoint-based censorship contains several

qualifications. Section 7 does not limit censorship of expression that a

Platform “is specifically authorized to censor by federal law”; expression

that “is the subject of a referral or request from an organization with the

purpose of preventing the sexual exploitation of children and protecting

survivors of sexual abuse from ongoing harassment”; expression that

“directly incites criminal activity or consists of specific threats of violence

targeted against a person or group because of their race, color, disability,

religion, national origin or ancestry, age, sex, or status as a peace officer or

judge”; or “unlawful expression.” Id. § 143A.006.

Finally, Section 7 provides a narrow remedial scheme. If a Platform

violates Section 7 with respect to a user, that user may sue for declaratory and

injunctive relief and may recover costs and attorney’s fees if successful. Id.

§ 143A.007. The Attorney General of Texas may also sue to enforce Section

7 and may recover attorney’s fees and reasonable investigative costs if

successful. Id. § 143A.008. Damages are not available.

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The other relevant provision of HB 20 is Section 2. It imposes certain

disclosure and operational requirements on the Platforms. These

requirements fall into three categories. First, Platforms must disclose how

they moderate and promote content and publish an “acceptable use policy.”

Tex. Bus. & Com. Code §§ 120.051–52. This policy must inform users

about the types of content allowed on the Platform, explain how the Platform

enforces its policy, and describe how users can notify the Platform of content

that violates the policy. Id. § 120.052(b).

Platforms must also publish a “biannual transparency report.” Id.

§ 120.053. This report must contain various high-level statistics related to the

Platform’s content-moderation efforts, including the number of instances in

which the Platform was alerted to the presence of policy-violating content;

how the Platform was so alerted; how many times the Platform acted against

such content; and how many such actions were successfully or unsuccessfully

appealed. See ibid.

Last, Platforms must maintain a complaint-and-appeal system for

their users. See id. §§ 120.101–04. When a Platform removes user-submitted

content, it must generally explain the reason to the user in a written statement

issued concurrently with the removal. Id. § 120.103(a). It also must permit

the user to appeal the removal and provide a response to the appeal within 14

business days. Id. § 120.104. Section 2 includes various exceptions to these

notice-and-appeal requirements. See id. § 120.103(b).

Only the Texas Attorney General may enforce Section 2. Id.

§ 120.151. The Attorney General may seek injunctive relief but not damages.

Ibid.

B.

NetChoice and the Computer & Communications Industry

Association are trade associations representing companies that operate

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Platforms covered by HB 20. They sued the Attorney General of Texas

(“Texas”) on September 22, 2021, before HB 20 went into effect.

The district court issued a preliminary injunction on December 1,

2021. It first held that Section 7 is facially unconstitutional. The court

“start[ed] from the premise that social media platforms are not common

carriers.” It then concluded that Platforms engage in “some level of editorial

discretion” by managing and arranging content, and viewpoint-based

censorship is part of that editorial discretion. It further held that this editorial

discretion is protected by cases like Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974). So according to the district court, HB 20’s prohibition

on viewpoint-based censorship unconstitutionally interfered with the

Platforms’ protected editorial discretion. The court did not explain why a

facial attack on Section 7 was appropriate, other than asserting that Section 7

is “replete with constitutional defects” and the court believed “nothing . . .

could be severed and survive.”

The district court then held that Section 2 is facially unconstitutional.

It reasoned that “Section 2’s disclosure and operational provisions are

inordinately burdensome given the unfathomably large numbers of posts on

these sites and apps.” Moreover, the court reasoned that Section 2 will “chill

the social media platforms’ speech” by disincentivizing viewpoint-based

censorship. Again, the court did not explain why a facial challenge to Section

2 was appropriate, other than stating that it imposes “onerously burdensome

disclosure and operational requirements.”

The district court also found that HB 20 discriminates based on

content and speaker, because it permits censorship of some content (like

specific threats of violence directed at a protected class) and only applies to

large social media platforms. It then held that HB 20 fails any level of

heightened scrutiny. Finally, it issued a preliminary injunction.

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Texas timely appealed. On December 15, 2021, Texas moved for a

stay of the preliminary injunction. We granted that motion on May 11, 2022.

On May 31, 2022, in a 5–4 decision, the Supreme Court vacated our stay.

Justice Kagan noted her dissent. Justice Alito, joined by Justice Thomas and

Justice Gorsuch, authored a six-page dissenting opinion to argue that our stay

should have remained undisturbed.

II.

We review the district court’s preliminary injunction for abuse of

discretion. Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d

692, 696 (5th Cir. 2018). A district court abuses its discretion if it grants an

injunction based on clearly erroneous factual findings or erroneous

conclusions of law. Ibid.

A preliminary injunction is “an extraordinary remedy that may only

be awarded upon a clear showing that the plaintiff is entitled to such relief.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff

seeking a preliminary injunction must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Id. at 20.

III.

The Platforms contend that Section 7 of HB 20 is facially

unconstitutional. We disagree. We (A) first reject the Platforms’ facial

overbreadth challenge because Section 7 does not chill speech; if anything, it

chills censorship. Then we (B) turn to the First Amendment’s text and

history, which offer no support for the Platforms’ claimed right to censor.

Next, applying Supreme Court precedent, we (C) hold that Section 7 does

not regulate the Platforms’ speech at all; it protects other people’s speech and

regulates the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C.

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§ 230, which reflects Congress’s judgment that the Platforms are not

“speaking” when they host other people’s speech. Our decision (E) is still

further reinforced by the common carrier doctrine, which vests the Texas

Legislature with the power to prevent the Platforms from discriminating

against Texas users. Finally, even if all of that’s wrong and Section 7 does

regulate the Platforms’ speech, it (F) satisfies the intermediate scrutiny that

applies to content-neutral rules.

A.

We begin with the First Amendment overbreadth doctrine. It

(1) offers a facial constitutional remedy that protects speech. It (2) does not

apply here because if Section 7 chills anything, it chills censorship. And the

Platforms’ parade of whataboutisms proves their real complaint is a purely

speculative one about how HB 20 will be enforced. The Platforms are

therefore not entitled to pre-enforcement facial relief against Section 7.

1.

The Platforms have asked a federal court to invalidate HB 20 in its

entirety before Texas even tries to enforce it. 3 To put it mildly, pre-

enforcement facial challenges to legislative acts are “disfavored for several

3

The plaintiff trade associations—which include every Platform subject to HB

20—asked the district court to find the statute could never be constitutionally enforced

against them. They did so before the law could be enforced against anyone. See 13B

Charles Alan Wright et al., Federal Practice and Procedure § 3532.3

(3d ed. Apr. 2022 Update) (stressing the “distinctions between the ripeness of broad

attacks on the legitimacy of any regulation and the nonripeness of more particular attacks

on more specific applications”). During briefing in the district court, the Platforms

characterized their suit as a facial challenge to HB 20. The district court’s opinion thus

properly treated this suit as a facial challenge, and the Platforms do not object to that

characterization on appeal.

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reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008). Three bear emphasis here.

First, the judicial power vested in us by Article III does not include the

power to veto statutes. And that omission is no accident: The Founders

expressly considered giving judges that power, and they decided not to do so.

Several delegates at the Constitutional Convention suggested creating a

“Council of Revision” consisting of federal judges and the executive.

Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954

(2018). They wanted to empower this Council to veto Congress’s legislation,

subject to congressional override. Ibid. A veto would render the legislation

“void.” Ibid. But despite the best efforts of James Wilson and James

Madison, the Convention rejected the proposal—three times over. Id. at

957–59. That means we have no power to “strike down,” “void,” or

“invalidate” an entire law. See id. at 936 (explaining that “federal courts have

no authority to erase a duly enacted law from the statute books” but have

only the power “to decline to enforce a statute in a particular case or

controversy” and “to enjoin executive officials from taking steps to enforce

a statute”); Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas,

J., concurring in the judgment) (noting that “[c]ourts have no authority to

strike down statutory text” and that “a facial challenge, if successful, has the

same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh,

Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010) (explaining

that the Founders did not conceive of judicial review as the power to “strike

down” legislation).

Second, the judicial power vested in us by Article III is limited to

deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2.

A federal court “has no jurisdiction to pronounce any statute, either of a state

or of the United States, void, because irreconcilable with the constitution,

except as it is called upon to adjudge the legal rights of litigants in actual

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controversies.” Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration,

113 U.S. 33, 39 (1885); accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178

(1803). This limitation on federal jurisdiction to “actual controversies”

prevents courts from “ancitipat[ing] a question of constitutional law in

advance of the necessity of deciding it.” Liverpool, 113 U.S. at 39; see also

Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973) (“[U]nder our

constitutional system courts are not roving commissions assigned to pass

judgment on the validity of the Nation’s laws.”). And it makes pre-

enforcement facial challenges a particularly nettlesome affair. Such suits

usually do not present “flesh-and-blood legal problems with data relevant

and adequate to an informed judgment.” New York v. Ferber, 458 U.S. 747,

768 (1982) (quotation omitted). Instead, they require the court “to consider

every conceivable situation which might possibly arise in the application of

complex and comprehensive legislation,” forcing courts to deploy the severe

power of judicial review “with reference to hypothetical cases.” United

States v. Raines, 362 U.S. 17, 21–22 (1960).

Third, federalism. Invalidate-the-law-now, discover-how-it-works-

later judging is particularly troublesome when reviewing state laws, as it

deprives “state courts [of ] the opportunity to construe a law to avoid

constitutional infirmities.” Ferber, 458 U.S. at 768. And “facial challenges

threaten to short circuit the democratic process by preventing laws

embodying the will of the people from being implemented in a manner

consistent with the Constitution.” Wash. State Grange, 552 U.S. at 451. The

respect owed to a sovereign State thus demands that we look particularly

askance at a litigant who wants unelected federal judges to countermand the

State’s democratically accountable policymakers.

In accordance with the disfavor that attaches to pre-enforcement

facial challenges, the legal standard for them is extraordinarily high.

Ordinarily, plaintiffs bringing this sort of “facial challenge to a legislative

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Act” must “establish that no set of circumstances exists under which the Act

would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see also

Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021). “Such

a challenge is the most difficult to mount successfully.” City of El Cenizo v.

Texas, 890 F.3d 164, 187 (5th Cir. 2018) (quotation omitted). The Platforms

do not even try to show that HB 20 is “unconstitutional in all of its

applications.” Wash. State Grange, 552 U.S. at 449. 4

Instead, their challenge is premised on First Amendment overbreadth

doctrine. Under this doctrine, the Supreme Court has “recognized a second

type of facial challenge, whereby a law may be invalidated as overbroad if a

substantial number of its applications are unconstitutional, judged in relation

to the statute’s plainly legitimate sweep.” Bonta, 141 S. Ct. at 2387 (quotation

omitted). This doctrine is limited to “the First Amendment context.” Ibid.

“Overbreadth is a judicially created doctrine designed to prevent the

chilling of protected expression.” Massachusetts v. Oakes, 491 U.S. 576, 584

(1989) (plurality op.); see generally Lewis D. Sargentich, Note, The First

Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970). As the

seminal case explained, the overbreadth doctrine addresses “threat[s] to

censure comments on matters of public concern.” Thornhill v. Alabama, 310

U.S. 88, 97 (1940). The doctrine’s rationale is that “[m]any persons, rather

than undertake the considerable burden (and sometimes risk) of vindicating

their rights through case-by-case litigation, will choose simply to abstain from

protected speech—harming not only themselves but society as a whole,

4

For example, the Platforms do not argue that HB 20’s provision restricting

censorship based on “a user’s geographic location in [Texas]” could not be constitutionally

applied to them. Tex. Civ. Prac. & Rem. Code § 143A.002(a)(3). While they

vigorously argue that viewpoint-based censorship is protected speech, they nowhere

contend that the First Amendment protects censorship based on geographic location.

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which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks,

539 U.S. 113, 119 (2003) (citation omitted).

Consistent with the overbreadth doctrine’s rationale, the Supreme

Court has only applied it where there is a substantial risk that the challenged

law will chill protected speech or association. See, e.g., Bigelow v. Virginia, 421

U.S. 809, 817–18 (1975) (declining to address facial overbreadth challenge

where statutory amendment removed risk that statute “will chill the rights of

others”); Law Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154,

167 (1971) (denying facial relief where “careful administration” of state

regulatory scheme could avoid “chilling effects upon the exercise of

constitutional freedoms”). The Court has also instructed that “the

overbreadth doctrine is strong medicine” that should be employed “only as

a last resort.” L.A. Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32,

39 (1999) (quotation omitted). And the overbreadth doctrine’s function

“attenuates” as the regulated expression moves from “pure speech toward

conduct.” Id. at 40 (quotation omitted).

2.

The overbreadth doctrine does not apply to Section 7. That’s for three

reasons.

First, the primary concern of overbreadth doctrine is to avoid chilling

speech. But Section 7 does not chill speech; instead, it chills censorship. So there

can be no concern that declining to facially invalidate HB 20 will inhibit the

marketplace of ideas or discourage commentary on matters of public concern.

Perhaps as-applied challenges to speculative, now-hypothetical enforcement

actions will delineate boundaries to the law. But in the meantime, HB 20’s

prohibitions on censorship will cultivate rather than stifle the marketplace of

ideas that justifies the overbreadth doctrine in the first place.

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The Platforms, of course, argue that their censorship somehow should

be construed as speech for First Amendment purposes. We deal with this

contention at length in Parts III.B, III.C, III.D, and III.E, infra. But even

stipulating arguendo that censorship can enjoy First Amendment protection,

it’s a far cry from the “pure speech” that’s the core concern of the

overbreadth doctrine. See United Reporting, 528 U.S. at 40. At most, the

Platforms’ censorship is, in the district court’s words, a “way that online

services express themselves and effectuate their community standards.”

That is, censorship is at best a form of expressive conduct, for which the

overbreadth doctrine provides only “attenuate[d]” protection. Ibid.

(quotation omitted); see also Broadrick, 413 U.S. at 614 (“[O]verbreadth

scrutiny has generally been somewhat less rigid in the context of statutes

regulating conduct in the shadow of the First Amendment, but doing so in a

neutral, noncensorial manner.”).

Tellingly, the Platforms have pointed to no case applying the

overbreadth doctrine to protect censorship rather than speech. To the

contrary, the Platforms principally rely on three cases. See Miami Herald, 418

U.S. 241; PG&E v. Public Utilities Commission of California, 475 U.S. 1 (1986);

and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515

U.S. 557 (1995). But all three involved challenges to concrete applications of

an allegedly unconstitutional law, raised by a defendant in state court

proceedings. So even if these cases supported the Platforms’ argument about

their substantive First Amendment rights, they would provide no support for

the Platforms’ attempt to use the First Amendment as a sword to facially

invalidate a law before it has been applied to anyone under any circumstances.

Second, overbreadth adjudication is meant to protect third parties

who cannot “undertake the considerable burden” of as-applied litigation and

whose speech is therefore likely to be chilled by an overbroad law. Hicks, 539

U.S. at 119; see also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1586

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(2020) (Thomas, J., concurring) (explaining that overbreadth doctrine

“allow[s] individuals to challenge a statute based on a third party’s

constitutional rights”). Courts have deemed this chilling effect on third

parties particularly worrisome when the overbroad law imposes criminal

sanctions. See, e.g., Gooding v. Wilson, 405 U.S. 518, 521 (1972).

This rationale for overbreadth adjudication is wholly inapposite here.

First of all, there are no third parties to chill. The plaintiff trade associations

represent all the Platforms covered by HB 20. Additionally, unlike individual

citizens potentially subject to criminal sanctions—the usual beneficiaries of

overbreadth rulings—the entities subject to HB 20 are large, well-heeled

corporations that have hired an armada of attorneys from some of the best

law firms in the world to protect their censorship rights. And any fear of

chilling is made even less credible by HB 20’s remedial scheme. Not only are

criminal sanctions unavailable; damages are unavailable. It’s hard to see how

the Platforms—which have already shown a willingness to stand on their

rights—will be so chilled by the prospect of declaratory and injunctive relief

that a facial remedy is justified.

Third, the Platforms principally argue against HB 20 by speculating

about the most extreme hypothetical applications of the law. Such

whataboutisms further exemplify why it’s inappropriate to hold the law

facially unconstitutional in a pre-enforcement posture.

Texas enacted HB 20 to address “the Platforms’ evolution into

internet censors.” Explaining the perceived need for the law, Texas and its

amici cite numerous instances in which the Platforms have censored what

Texas contends is pure political speech. For example, one amicus brief

documents the Platforms’ censorship of fifteen prominent celebrities and

political figures—including five holding federal elected office. See Brief for

Amici Curiae The Babylon Bee, LLC, et al. at 26–38. Texas also points to the

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Platforms’ “discriminat[ion] against Americans and in favor of foreign

adversaries” and censorship of even a congressional hearing that featured

disfavored viewpoints.

The Platforms do not directly engage with any of these concerns.

Instead, their primary contention—beginning on page 1 of their brief and

repeated throughout and at oral argument—is that we should declare HB 20

facially invalid because it prohibits the Platforms from censoring “pro-Nazi

speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.

Far from justifying pre-enforcement facial invalidation, the Platforms’

obsession with terrorists and Nazis proves the opposite. The Supreme Court

has instructed that “[i]n determining whether a law is facially invalid,” we

should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.”

Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a

“tendency . . . to summon forth an endless stream of fanciful hypotheticals,”

and this case is no exception. United States v. Williams, 553 U.S. 285, 301

(2008). But it’s improper to exercise the Article III judicial power based on

“hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. Sineneng-

Smith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension

between overbreadth adjudication and the constitutional limits on judicial

power).

If we focus instead on “the statute’s facial requirements,” Wash.

State Grange, 552 U.S. at 450, its language renders implausible many of the

Platforms’ extreme hypothesized applications of the law. HB 20 expressly

permits the Platforms to censor any unlawful expression and certain speech

that “incites criminal activity or consists of specific threats”—not to

mention any content the Platforms are authorized to censor by federal law.

Tex. Civ. Prac. & Rem. Code § 143A.006(a). So at a minimum, we

should avoid “determin[ing] the constitutionality of [HB 20] in hypothetical

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situations where it is not even clear the State itself would consider its law

applicable.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382 (1992).

Or as one amicus puts it, the Platforms at this early stage may not use

borderline hypotheticals involving vile expression to pretermit consideration

of “what actually is at stake—namely, the suppression of domestic political,

religious, and scientific dissent.” Brief of Amicus Curiae Prof. Philip

Hamburger at 21.

In short, Section 7 chills no speech whatsoever. To the extent it chills

anything, it chills censorship. That is, Section 7 might make censors think

twice before removing speech from the Platforms in a viewpoint-

discriminatory manner. But we cannot find any cases, from any court, that

suggest a would-be censor can bring a First Amendment overbreadth

challenge because a regulation chills its efforts to prohibit others from

speaking.

B.

We turn now to the merits of the Platforms’ First Amendment claim.

As always, we start with the original public meaning of the Constitution’s

text. We need not tarry long here because the Platforms—by pointing to no

evidence whatsoever on this point—do not contend that the First

Amendment’s history and original understanding provide any basis for

invalidating Section 7.

The First Amendment prevents the government from enacting laws

“abridging the freedom of speech, or of the press.” U.S. Const. amend. I;

see Gitlow v. New York, 268 U.S. 652 (1925) (incorporating this right against

the States). At the Founding and “[f ]or most of our history, speech and press

freedoms entailed two common-law rules—first, a prohibition on prior

restraints and, second, a privilege of speaking in good faith on matters of

public concern.” Jud Campbell, The Emergence of Neutrality, 131 Yale L.J.

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861, 874–75 (2022). The first rule was central to the Speech Clause as

originally understood, because the “core abuse against which it was directed

was the scheme of licensing laws implemented by the monarch and

Parliament to contain the ‘evils’ of the printing press in 16th- and 17-century

England.” Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002). For

example, the Printing Act of 1662 required all printers to obtain a license and

then “required that all works be submitted for approval to a government

official, who wielded broad authority to suppress works that he found to be

heretical, seditious, schismatical, or offensive.” Ibid. (quotation omitted).

Licensing schemes like the Printing Act generated substantial

opposition in both England and the American colonies. They disappeared in

both places by the 1720s. See David S. Bogen, The Origins of Freedom of Speech

and Press, 42 Md. L. Rev. 429, 443–44 (1983). Thus, Blackstone had this

to say two decades before the First Amendment’s ratification:

The liberty of the press is indeed essential to the nature of a

free state: but this consists in laying no previous restraints upon

publications, and not in freedom from censure for criminal

matter when published. . . . To subject the press to the

restrictive power of a licenser, as was formerly done, both

before and since the revolution, is to subject all freedom of

sentiment to the prejudices of one man, and make him the

arbitrary and infallible judge of all controverted points in

learning, religion, and government.

4 William Blackstone, Commentaries *151–52. Founding-era

Americans similarly viewed the freedom from prior restraints as a central

component of the freedoms of speech and the press. See Campbell, Emergence

of Neutrality, supra, at 875–76; see also, e.g., 3 Joseph Story,

Commentaries on the Constitution § 1874 (1833) (“It is plain,

then, that the language of [the First A]mendment imports no more, than that

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every man shall have a right to speak, write, and print his opinions upon any

subject whatsoever, without any prior restraint . . . .”).

As originally understood, the First Amendment’s Speech and Press

Clauses also protected the freedom to make well-intentioned statements of

one’s thoughts, particularly on matters of public concern. See generally Jud

Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 280–

87 (2017). States recognized this freedom before the First Amendment’s

ratification. 5 The Anti-Federalists worked to protect it in the federal

Constitution. 6 And even the Federalists—who were generally less friendly to

the freedom of speech—recognized that the First Amendment protected this

right. See id. at 286; see also, e.g., 8 Annals of Cong. 2148 (1798)

(statement of Rep. Harrison Gray Otis) (recognizing that the First

Amendment protects “the liberty of writing, publishing, and speaking, one’s

5

For example, in 1788, Chief Justice McKean of the Supreme Court of

Pennsylvania explained that “[t]he true liberty of the press is amply secured by permitting

every man to publish his opinions; but it is due to the peace and dignity of society to enquire

into the motives of such publications, and to distinguish between those which are meant for

use and reformation, and with an eye solely to the public good, and those which are

intended merely to delude and defame.” Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa.

1788). This statement illustrates both facets of the First Amendment’s original public

meaning. First, prior restraints were prohibited, full stop: “[E]very man [may] publish his

opinions.” Ibid. Second, whether post-publication liability could be imposed depended on

whether an opinion was “meant for use and reformation . . . [or] merely to delude and

defame”—to use modern terminology, whether the statement was made in good faith. Ibid.

6

See, e.g., Centinel No. 1, in 2 The Complete Anti-Federalist 136, 136

(Herbert J. Storing ed., 1981) (urging the People to demand constitutional protection for

“a right of freedom of speech”). Thomas Jefferson also wrote to James Madison—who

later drafted the Bill of Rights—that he thought the Constitution should ensure “[t]he

people shall not be deprived or abridged of their right to speak to write or otherwise to

publish any thing but false facts affecting injuriously the life, property, or reputation of

others or affecting the peace of the confederacy with foreign nations.” Letter from Thomas

Jefferson to James Madison (Aug. 28, 1789), in 5 The Founders’ Constitution

129, 129–30 (Philip B. Kurland & Ralph Lerner eds., 1987).

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thoughts, under the condition of being answerable . . . for false, malicious,

and seditious expressions, whether spoken or written”).

The Platforms neither challenge this understanding of the First

Amendment’s original meaning nor suggest that Section 7 runs afoul of it.

This apparent concession is unsurprising. First, Section 7 does not operate

as a prior restraint on the Platforms’ speech—even if one accepts their

characterization of censorship as speech. Recall Blackstone’s criticism of

prior restraints: that they “subject all freedom of sentiment to the prejudices

of one man, and make him the arbitrary and infallible judge of all controverted

points in learning, religion, and government.” 4 Blackstone, supra, at

*151–52. The Platforms operate “the modern public square,” Packingham,

137 S. Ct. at 1737, and it is they—not the government—who seek to defend

viewpoint-based censorship in this litigation.

Second, Section 7 does not prevent anyone from expressing their

good-faith opinions on matters of public concern. Precisely the opposite:

Section 7 protects Texans’ ability to freely express a diverse set of opinions

through one of the most important communications mediums used in that

State. And it leaves the Platforms free to similarly opine: They can still say

whatever they want (or decline to say anything) about any post by any user.

Moreover, Section 7’s exceptions—where viewpoint-based censorship is still

permitted, like certain specific threats of violence—contemplate malicious,

bad-faith speech not protected by the First Amendment as originally

understood. See Campbell, Emergence of Neutrality, supra, at 878. So Section

7’s carveouts do nothing to impugn its constitutionality under the First

Amendment’s original meaning.

C.

Rather than mount any challenge under the original public meaning of

the First Amendment, the Platforms instead focus their attention on

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Supreme Court doctrine. And under that doctrine, the Platforms contend,

Section 7 somehow burdens their right to speak. How so, you might wonder?

Section 7 does nothing to prohibit the Platforms from saying whatever they

want to say in whatever way they want to say it. Well, the Platforms contend,

when a user says something using one of the Platforms, the act of hosting (or

rejecting) that speech is the Platforms’ own protected speech. Thus, the

Platforms contend, Supreme Court doctrine affords them a sort of

constitutional privilege to eliminate speech that offends the Platforms’

censors.

We reject the Platforms’ efforts to reframe their censorship as speech.

It is undisputed that the Platforms want to eliminate speech—not promote

or protect it. And no amount of doctrinal gymnastics can turn the First

Amendment’s protections for free speech into protections for free censoring.

We (1) explain the relevant doctrine and Supreme Court precedent. Then we

(2) hold this precedent forecloses the Platforms’ argument that Section 7 is

unconstitutional.

1.

Supreme Court precedent instructs that the freedom of speech

includes “the right to refrain from speaking at all.” Wooley v. Maynard, 430

U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943). So the State may not force a private speaker to speak

someone’s else message. See Wooley, 430 U.S. at 714.

But the State can regulate conduct in a way that requires private

entities to host, transmit, or otherwise facilitate speech. Were it otherwise,

no government could impose nondiscrimination requirements on, say,

telephone companies or shipping services. But see 47 U.S.C. § 202(a)

(prohibiting telecommunications common carriers from “mak[ing] any

unjust or unreasonable discrimination in charges, practices, classifications,

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regulations, facilities, or services”). Nor could a State create a right to

distribute leaflets at local shopping malls. But see PruneYard Shopping Ctr. v.

Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the

right to pamphleteer in privately owned shopping centers). So First

Amendment doctrine permits regulating the conduct of an entity that hosts

speech, but it generally forbids forcing the host itself to speak or interfering

with the host’s own message.

Five Supreme Court cases elucidate this distinction. The first is

Miami Herald. It involved a Florida law providing that when a newspaper

article criticizes the character or record of a political candidate, the

newspaper must offer the candidate equal space in the paper to reply to the

criticism. 418 U.S. at 244. The Court held that this “right-of-reply” law

violated the First Amendment. Id. at 258.

The Court explained that the law interfered with the newspaper’s

speech by imposing a content-based penalty on it. See id. at 256 (“The

Florida statute exacts a penalty on the basis of the content of a newspaper.”).

If the newspaper chose to speak about most topics, there was no penalty—

but if it spoke critically about a political candidate, it was penalized with the

“cost in printing and composing time and materials” necessary to give the

candidate a free and equally prominent response column. Ibid. Moreover, the

reply would “tak[e] up space that could be devoted to other material the

newspaper may have preferred to print.” Ibid. This interference would

disincentivize the newspaper’s speech: Faced with these penalties, “editors

might well conclude that the safe course is to avoid controversy” and reduce

coverage of political candidates altogether. Id. at 257.

The Court also concluded that the right-of-reply law impermissibly

compelled the newspaper to speak messages it opposed. As the Court

explained:

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A newspaper is more than a passive receptacle or conduit for

news, comment, and advertising. The choice of material to go

into a newspaper, and the decisions made as to limitations on

the size and content of the paper, and treatment of public issues

and public officials—whether fair or unfair—constitute the

exercise of editorial control and judgment.

Id. at 258. Because a newspaper prints a curated set of material selected by

its editors, everything it publishes is, in a sense, the newspaper’s own speech.

And the newspaper has a right to “editorial control and judgment” over its

speech. Ibid. Newspapers thus cannot be compelled to “publish that which

reason tells them should not be published.” Id. at 256 (quotation omitted).

The second case is PruneYard. That case involved a group of high

school students who sought to distribute pamphlets and solicit signatures at

a local shopping mall. The California Supreme Court held that California law

protected the right to “speech and petitioning, reasonably exercised, in

shopping centers even when the centers are privately owned.” 447 U.S. at 78

(quotation omitted). The mall objected on First Amendment grounds,

arguing that “a private property owner has a First Amendment right not to

be forced by the State to use his property as a forum for the speech of others.”

Id. at 85.

The Supreme Court rejected the shopping mall’s challenge. It found

the state law exacted no penalty on the basis of the mall’s speech, and the

mall could “expressly disavow any connection with the [pamphleteers’]

message by simply posting signs in the area where the speakers or handbillers

st[oo]d.” Id. at 87–88. Nor did California law impermissibly compel the mall

itself to speak. To the contrary, because the mall was open to anyone, “[t]he

views expressed by members of the public in passing out pamphlets or

seeking signatures . . . will not likely be identified with those of the owner.”

Id. at 87. The Court also emphasized California’s neutrality among

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viewpoints: Because “no specific message is dictated by the State to be

displayed on appellants’ property,” there was “no danger of governmental

discrimination for or against a particular message.” Ibid.

The mall relied in part on Miami Herald, but the PruneYard Court

easily found that case inapplicable. The Court stated that Miami Herald

“rests on the principle that the State cannot tell a newspaper what it must

print,” and it emphasized the “danger in [Miami Herald] that the statute

would dampen the vigor and limit the variety of public debate by deterring

editors from publishing controversial political statements that might trigger

the application of the statute.” Id. at 88. Those concerns were “obviously . . .

not present” in PruneYard. Ibid.

The third case is PG&E. A utility company, PG&E, had a longstanding

practice of including a monthly newsletter in its billing envelopes. 475 U.S.

at 5 (plurality op.). “In appearance no different from a small newspaper,” the

newsletter included political editorials and stories on matters of public

interest alongside tips on energy conservation and information about utility

services. Id. at 5, 8. Concerned that the expense of PG&E’s political speech

was falling on customers, the California Public Utilities Commission

(“Commission”) decided to apportion the billing envelopes’ “extra

space”—that is, the space occupied by the company’s newsletter—and

permit a third-party group representing PG&E ratepayers to use that space

for its opposing messages four months per year. Id. at 5–6. PG&E objected,

arguing that the First Amendment prevented the Commission from forcing

it to include an adverse party’s speech in its billing envelopes.

The Supreme Court ruled for PG&E. A plurality held that the

Commission’s order both interfered with PG&E’s own speech and

impermissibly forced it to associate with the views of other speakers. As in

Miami Herald, the “one-sidedness” of the Commission’s order penalized

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and disincentivized PG&E’s expression by awarding space only to those who

disagreed with PG&E’s speech:

[B]ecause access is awarded only to those who disagree with

appellant’s [PG&E’s] views and who are hostile to appellant’s

interests, appellant must contend with the fact that whenever

it speaks out on a given issue, it may be forced—at [a third-

party’s] discretion—to help disseminate hostile views.

Appellant “might well conclude” that, under these

circumstances, “the safe course is to avoid controversy,”

thereby reducing the free flow of information and ideas that the

First Amendment seeks to promote.

Id. at 14 (quoting Miami Herald, 418 U.S. at 257).

The plurality also found that the Commission’s order impermissibly

“require[d] [PG&E] to associate with speech with which [it] may disagree.”

Id. at 15. Because the third party could “use the billing envelopes to discuss

any issues it chooses,” PG&E “may be forced either to appear to agree . . .

or to respond.” Ibid. “That kind of forced response is antithetical to the free

discussion that the First Amendment seeks to foster.” Id. at 16.

Finally, the PG&E plurality found PruneYard distinguishable for two

reasons. First, PruneYard did not involve a concern that the challenged law

“might affect the shopping center owner’s exercise of his own right to

speak.” Id. at 12. Second, the right of access at issue in PruneYard was not

content-based. Ibid. 7

7

Justice Marshall provided the fifth vote to invalidate the Commission’s order. See

PG&E, 475 U.S. at 21 (Marshall, J., concurring in the judgment). He emphasized two ways

in which the Commission’s order was different from the law upheld in PruneYard.

First, the right of access created by the Commission was more intrusive than the

one upheld in PruneYard. That’s because the shopping mall owner in PruneYard had

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The fourth case is Hurley. GLIB, an organization of Irish-American

gay, lesbian, and bisexual individuals, sought to march in a St. Patrick’s Day

parade in Boston. 515 U.S. at 561. The parade was organized by a private

group, the South Boston Allied War Veterans Council (“Council”). Id. at

560. The Council refused to admit GLIB, citing “traditional religious and

social values.” Id. at 562 (quotation omitted). But the Supreme Judicial Court

of Massachusetts held that the parade was a public accommodation under

state law, so the Council had to let GLIB participate. Id. at 564. The Council

argued that this application of Massachusetts’s public accommodation law

violated the First Amendment, and the Supreme Court agreed. Id. at 566.

The Court concluded that the parade was a “form of expression” that

receives First Amendment protection. Id. at 568. That’s because “[r]ather

like a composer, the Council selects the expressive units of the parade from

potential participants, and though the score may not produce a particularized

message, each contingent’s expression in the Council’s eyes comports with

what merits celebration on that day.” Id. at 574. And it didn’t matter that the

Council was “rather lenient in admitting participants,” because “a private

speaker does not forfeit constitutional protection simply by combining

multifarious voices, or by failing to edit their themes to isolate an exact

message as the exclusive subject matter of the speech.” Id. at 569–70.

voluntarily opened his property up to the public, whereas PG&E “has never opened up its

billing envelope to the use of the public.” Id. at 22.

Second, in PruneYard, the speech of the shopping mall owner was not “hindered

in the slightest” by the public’s pamphleteering right. Id. at 24. PG&E, by contrast,

involved “a forum of inherently limited scope,” such that the State’s appropriation of that

forum for a third party’s use necessarily curtailed PG&E’s ability to speak in that forum.

Ibid. And this interference with PG&E’s speech could not be justified by the State’s goal

of “subsidiz[ing] . . . another speaker chosen by the State.” Ibid.

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The cornerstone of the Court’s reasoning was that the parade

sponsors were “intimately connected” to the message communicated by the

parade. Id. at 576. This intimate connection was crucial, the Court held,

because forcing the sponsors to include a particular float was tantamount to

forcing the sponsors to speak: “[W]hen dissemination of a view contrary to

one’s own is forced upon a speaker intimately connected with the

communication advanced, the speaker’s right to autonomy over the message

is compromised.” Id. at 576; see also id. at 573 (emphasizing that “a speaker

has the autonomy to choose the content of his own message,” including by

“decid[ing] what not to say”) (quotation omitted).

The final case that’s particularly relevant to our discussion is Rumsfeld

v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006).

Certain law schools sought to restrict military recruiting on their campuses

because of the military’s policies on sexual orientation. Id. at 51. Congress

responded by enacting the Solomon Amendment, which denied federal

funding to schools that did not give military recruiters “access to students

that is at least equal in quality and scope to the access provided other

potential employers.” Id. at 54 (quotation omitted). An organization of law

schools sued, arguing that the Solomon Amendment violated the First

Amendment. The Supreme Court disagreed. It unanimously held that “the

First Amendment would not prevent Congress from directly imposing the

Solomon Amendment’s access requirement,” and the statute thus did not

place an unconstitutional condition on the receipt of federal funds. Id. at 60.

The Court first held that the Solomon Amendment did not

impermissibly force the law schools to speak. Id. at 61–62. The Court

recognized that “recruiting assistance provided by the schools often includes

elements of speech”—like sending emails or posting bulletin board notices

on the recruiter’s behalf. Id. at 61. But the Court determined that this speech

was “plainly incidental to the Solomon Amendment’s regulation of

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conduct” and was nothing like a “Government-mandated pledge or motto”

as in Barnette and Wooley. Id. at 62. Congress could therefore compel this

“incidental” speech without violating the First Amendment. Ibid.

The Court then held that the Solomon Amendment did not

impermissibly interfere with the schools’ own speech, distinguishing Miami

Herald, PG&E, and Hurley. Id. at 63–65. It acknowledged that those three

cases “limited the government’s ability to force one speaker to host or

accommodate another speaker’s message.” Id. at 63. But it then explained

that these “compelled-speech violation[s] . . . resulted from the fact that the

complaining speaker’s own message was affected by the speech it was forced

to accommodate.” Ibid.; see also id. at 63–64 (explaining how the challenged

laws “interfere[d] with a speaker’s desired message” in Miami Herald,

PG&E, and Hurley). In Rumsfeld, by contrast, “accommodating the

military’s message [did] not affect the law schools’ speech, because the

schools [were] not speaking when they host interviews and recruiting

receptions.” Id. at 64. That was true despite the risk that students might

mistakenly interpret the law schools’ conduct as sending the message that

they see nothing wrong with the military’s policies. Id. at 64–65. In sum, even

though it required law schools to host and accommodate others’ speech, the

Solomon Amendment was constitutional because it “neither limit[ed] what

law schools may say nor require[d] them to say anything.” Id. at 60.

2.

Under these precedents, a speech host must make one of two

showings to mount a First Amendment challenge. It must show that the

challenged law either (a) compels the host to speak or (b) restricts the host’s

own speech. The Platforms cannot make either showing. And (c) the

Platforms’ counterarguments are unpersuasive.

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a.

Let’s start with compelled speech. In Miami Herald, the Supreme

Court held that Florida’s right-of-reply law was unconstitutional because it

compelled newspapers to speak. Crucially, the Court emphasized that “[a]

newspaper is more than a passive receptable or conduit for news, comment,

or advertising.” Miami Herald, 418 U.S. at 258. Rather, a newspaper curates

and publishes a narrow “choice of material” in accordance with the

“editorial control and judgment” of its editors. Ibid. Thus, when a newspaper

affirmatively chooses to publish something, it says that particular speech—

at the very least—should be heard and discussed. So forcing a newspaper to

run this or that column is tantamount to forcing the newspaper to speak.

The Platforms are nothing like the newspaper in Miami Herald. Unlike

newspapers, the Platforms exercise virtually no editorial control or judgment.

The Platforms use algorithms to screen out certain obscene and spam-related

content. 8 And then virtually everything else is just posted to the Platform

with zero editorial control or judgment. “Something well north of 99% of

th[is] content . . . never gets reviewed further. The content on a site is, to that

extent, invisible to the [Platform].” NetChoice, LLC v. Moody, 546 F. Supp.

3d 1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike newspapers, are

primarily “conduit[s] for news, comment, and advertising.” Miami Herald,

418 U.S. at 258. And that’s why the Supreme Court has described them as

“the modern public square.” Packingham, 137 S. Ct. at 1737; see also Biden v.

Knight First Amend. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J.,

concurring) (noting Platforms are also “unlike newspapers” in that they

8

The Platforms have disclosed little about their algorithms in this appeal, other

than suggesting that they “often moderate certain policy-violating content before users see

it.” The Platforms never suggest their algorithms somehow exercise substantive,

discretionary review akin to newspaper editors.

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“hold themselves out as organizations that focus on distributing the speech

of the broader public”).

The Platforms’ own representations confirm this. 9 They’ve told their

users: “We try to explicitly view ourselves as not editors. . . . We don’t want

to have editorial judgment over the content that’s in your feed.” 10 They’ve

told the public that they “may not monitor,” “do not endorse,” and “cannot

take responsibility for” the content on their Platforms. 11 They’ve told

Congress that their “goal is to offer a platform for all ideas.” 12 And they’ve

told courts—over and over again—that they simply “serv[e] as conduits for

other parties’ speech.” 13

9

To the extent that these representations vary between Platforms, that further cuts

against the propriety of this facial, pre-enforcement challenge. Cf. supra Part III.A. To

establish associational standing, the plaintiff trade associations asserted in the district court

that this suit “does not require individualized facts about any particular covered social

media platform.” ROA.645; see also Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety

Comm’n, 989 F.3d 368, 377 (5th Cir. 2021) (stating the relevant rule). So the Platforms may

not now rely on individualized facts to claim that, for example, one Platform operates like

a newspaper even if the others don’t.

10

Ravi Somaiya, How Facebook Is Changing the Way Its Users Consume Journalism,

N.Y. Times, Oct. 26, 2014, https://nyti.ms/3ommZXb.

11

Twitter, Terms of Service § 3, https://twitter.com/en/tos (last visited Aug. 6,

2022) [hereinafter Twitter Terms]; see also Facebook, Terms of Service § 4.3,

https://www.facebook.com/terms.php (last visited Aug. 6, 2022) [hereinafter Facebook

Terms] (“We are not responsible for [users’] actions or conduct . . . or any content they

share.”); YouTube, Terms of Service, https://www.youtube.com/static?template=terms

(last visited Aug. 6, 2022) (“Content is the responsibility of the person or entity that

provides it to [YouTube].”).

12

Online Platforms and Market Power, Part 6: Hearing Before the Subcomm. on

Antitrust, Com. and Admin. Law of the H. Comm. on the Judiciary, 116th Cong. 33 (2020)

(testimony of Mark Zuckerberg, CEO, Facebook, Inc.).

13

Brief for Appellees at 1, Klayman v. Zuckerberg, No. 13-7017 (D.C. Cir. Oct. 25,

2013); see also, e.g., Notice of Motion and Motion to Dismiss at 10 n.5, Fields v. Twitter, Inc.,

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It is no answer to say, as the Platforms do, that an observer might

construe the act of hosting speech as an expression of support for its message.

That was the precise contention the Court rejected in both PruneYard and

Rumsfeld: Neither the shopping mall nor the law schools wanted to endorse

the hosted speech. The Rumsfeld Court dismissed that concern out of hand

because even schoolchildren know the difference between sponsoring speech

and allowing it. See 547 U.S. at 65 (citing Bd. of Educ. of Westside Cmty. Schs.

(Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990)). That’s precisely why even

the Platforms concede that “objective observer[s]” would not “conclude

that [Platforms] intended . . . to promote terrorism” when they host terrorist

content. Motion to Dismiss at 23, Gonzalez v. Twitter, Inc., No. 4:16-cv-03282

(N.D. Cal. Jan. 13, 2017).

Recognizing that their compelled-speech analogy to newspapers is a

stretch, the Platforms turn to parades and the Hurley case. The Platforms

contend that Section 7 forces them to host speech that’s inconsistent with

their corporate “values.” But of course, the Platforms do not contend that

they carefully curate users’ speech the way a parade sponsor or composer

“selects . . . expressive units . . . from potential participants.” Hurley, 515

U.S. at 568. Nor do they suggest that they are “intimately connected with

the communication” Section 7 requires them to host. Id. at 576. The

Platforms instead contend that their censorship is protected because Hurley

creates a freewheeling right for speech hosts to discriminate against messages

they don’t like.

Hurley said nothing of the sort. The Court instead carefully limited its

holding to a speech host (like a parade organizer or composer) who is

“intimately connected” with the hosted speech (like a parade or a

No. 3:16-cv-00213 (N.D. Cal. Apr. 6, 2016) (stating Twitter is “a service provider acting

as a conduit for huge quantities of third-party speech”).

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symphony). Ibid. And the Platforms are nothing like such hosts. They don’t

pick content to “mak[e] some sort of collective point,” even an abstract one

like “what merits celebration on [St. Patrick’s] day.” Id. at 568, 574. Rather,

the Platforms permit any user who agrees to their boilerplate terms of service

to communicate on any topic, at any time, and for any reason. And as noted

above, virtually none of this content is meaningfully reviewed or edited in any

way.

Nor can the Platforms point to the content they do censor and claim

that makes them akin to parade organizers. In Rumsfeld, for example, the law

schools argued that their denial of access to military recruiters was protected

expressive conduct because it “expressed” the schools’ disagreement with

the military. 547 U.S. at 66. But the Court held that the denial of access was

not inherently expressive, because such conduct would only be understood as

expressive in light of the law schools’ speech explaining it. See ibid.

Otherwise, observers wouldn’t know that the denial of access stemmed from

an ideological disagreement—they might instead conclude, for example, that

“the military recruiters decided for reasons of their own that they would

rather interview someplace else.” Ibid.

The same reasoning applies here. 14 If a Platform censors a user’s post,

the expressive quality of that censorship arises only from the Platform’s

14

To be clear, unlike in Rumsfeld, the Platforms in this case never argue that their

acts of censorship constitute “expressive conduct.” Cf., e.g., Texas v. Johnson, 491 U.S.

397, 404 (1989) (noting that expressive conduct may be protected by the First Amendment

if the actor both has “an intent to convey a particularized message” and “the likelihood

[is] great that the message would be understood by those who viewed it” (quotation

omitted)). In fact, the phrase “expressive conduct” never even appears in their brief before

our court. Compare infra at 82 n.41 (noting that the Platforms made such an argument

before the Eleventh Circuit). But to the extent any such argument is latent in their reliance

on Hurley or their claim of protected “editorial discretion,” it’s plainly foreclosed by the

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speech (whether on an individualized basis or in its terms of service) stating

that the Platform chose to censor the speech and explaining how the

censorship expresses the Platform’s views. Otherwise, as in Rumsfeld, an

observer might just as easily infer that the user himself deleted the post and

chose to speak elsewhere. In terms of the conduct’s inherent expressiveness,

there is simply no plausible way to distinguish the targeted denial of access to

only military recruiters in Rumsfeld from the viewpoint-based censorship

regulated by HB 20. Section 7 does not compel the Platforms to speak.

b.

Nor does it do anything to prohibit the Platforms from speaking.

That’s for three independent reasons.

First, the Platforms have virtually unlimited space for speech, so

Section 7’s hosting requirement does nothing to prohibit the Platforms from

saying what they want to say. Contrariwise, both Miami Herald and PG&E

involved “forum[s] of inherently limited scope”—a newspaper and

newsletter with significant space constraints. PG&E, 475 U.S. at 24

(Marshall, J., concurring in the judgment). So when the State appropriated

space in the newspaper or newsletter for a third party’s use, it necessarily

curtailed the owner’s ability to speak in its own forum. See Miami Herald, 418

U.S. at 256 (“[T]he compelled printing . . . tak[es] up space that could be

devoted to other material the newspaper may have preferred to print.”); see

also Rumsfeld, 547 U.S. at 64 (explaining the results in Miami Herald and

PG&E in these terms). Accordingly, when a “speaker’s own message [is]

affected by the speech it [is] forced to accommodate,” the speaker may

invoke the First Amendment to protect their own ability to speak. Rumsfeld,

Supreme Court’s reasoning in Rumsfeld. Moreover, the Platforms never suggest that their

censorship could “convey a particularized message.” See Johnson, 491 U.S. at 404.

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547 U.S. at 63. By contrast, “space constraints on digital platforms are

practically nonexistent”—unlike with newspapers, cable companies, and

many of the other entities the Platforms invoke by analogy. Knight, 141 S. Ct.

at 1226 (Thomas, J., concurring). For this reason, the Platforms can host

users’ speech without giving up their power or their right to speak their own

message(s).

Second, the Platforms are free to say whatever they want to distance

themselves from the speech they host. The Supreme Court has been very

careful to limit forced-affiliation claims by speech hosts. After all, any speech

host could always object that its accommodation for speech might be

confused for a coerced endorsement of it. But the Court rejected that forced-

affiliation argument in PruneYard, where the shopping mall owner was not

required to affirm the pamphleteers’ expression in any way, and was “free to

publicly dissociate [himself] from the views of the speakers or handbillers.”

447 U.S. at 88. Similarly, in Rumsfeld, the law schools argued “that if they

treat military and nonmilitary recruiters alike . . . they could be viewed as

sending the message that they see nothing wrong with the military’s

policies.” 547 U.S. at 64–65. But the Supreme Court easily rejected this

argument, because “[n]othing about recruiting suggests that law schools

agree with any speech by recruiters, and nothing in the Solomon Amendment

restricts what the law schools may say about the military’s policies.” Id. at

65. Rather, to win a forced-affiliation claim, the speech host must show that

it’s “intimately connected with the communication” and hence cannot

dissociate itself from it. Hurley, 515 U.S. at 576. Here, the Platforms remain

free to expressly disavow, distance themselves from, or say whatever they

want about any expression they host. For example, Platforms can add

addenda or disclaimers—containing their own speech—to users’ posts. And

many of them already do this, thus dramatically underscoring that Section 7

prohibits none of their speech.

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Third, Section 7 does not impose a content-based penalty on the

Platforms’ speech. Recall that the right-of-reply law in Miami Herald

burdened newspapers with the duty to publish a response column if they

published an article questioning the character or record of a political

candidate. 418 U.S. at 244. As the PG&E plurality explained, this imposed a

content-based penalty on the newspaper’s speech in two distinct senses:

First, the penalty was “triggered by a particular category of newspaper

speech”; and second, access “was awarded only to those who disagreed with

the newspaper’s views.” 475 U.S. at 13; see also id. at 14 (explaining that the

Commission’s order in PG&E was content-based in the second sense). Here,

by contrast, no category of Platform speech can trigger any additional duty—

or obviate an existing duty—under Section 7. And Section 7 does not create

a special privilege for those who disagree with the Platforms’ views. Cf. id. at

14 (billing envelope space was awarded only to a single entity formed to

oppose PG&E’s views). Rather, it gives the exact same protection to all

Platform users regardless of their viewpoint.

c.

The Platforms do not seriously dispute any of this. Instead, they argue

that Section 7 interferes with their speech by infringing their “right to

exercise editorial discretion.” They reason as follows. Premise one is that

“editorial discretion” is a separate, freestanding category of First-

Amendment-protected expression. Premise two is that the Platforms’

censorship efforts constitute “editorial discretion.” Conclusion: Section 7

burdens the Platforms’ First Amendment rights by obstructing their

censorship efforts.

Both premises in that syllogism are flawed. Premise one is faulty

because the Supreme Court’s cases do not carve out “editorial discretion”

as a special category of First-Amendment-protected expression. Instead, the

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Court considers editorial discretion as one relevant consideration when

deciding whether a challenged regulation impermissibly compels or restricts

protected speech. Take, for example, Turner Broadcasting System, Inc. v.

FCC, 512 U.S. 622 (1994) (“Turner I”). There the Court noted a cable

operator “exercis[es] editorial discretion over which stations or programs to

include in its repertoire.” Id. at 636 (quotation omitted). For this reason,

among others, the Court concluded that selecting a limited repertoire of cable

channels to transmit constitutes First-Amendment-protected speech. See id.

at 636–37. Similarly, Miami Herald emphasized newspapers’ “exercise of

editorial control and judgment” to support its holding that their close

affiliation with the speech they publish gives them the right not to publish

“that which reason tells them should not be published.” 418 U.S. at 256, 258

(quotation omitted). But both cases treated editorial discretion as a relevant

consideration supporting their legal conclusions about the presence or

absence of protected speech. Neither case implied that editorial discretion is

itself a freestanding category of constitutionally protected expression. 15

Accordingly, the Platforms cannot invoke “editorial discretion” as if

uttering some sort of First Amendment talisman to protect their censorship.

Were it otherwise, the shopping mall in PruneYard and law schools in

Rumsfeld could have changed the outcomes of those cases by simply asserting

a desire to exercise “editorial discretion” over the speech in their forums.

Instead, the Platforms must show that Section 7 either coerces them to speak

15

The Platforms’ other cases ostensibly supporting premise one are even farther

afield. Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019), discussed the

constitutional limits on editorial discretion in public forums and described the issue in this

case as “[a] distinct question not raised here.” Id. at 1931 & n.2. And Arkansas Educational

Television Commission v. Forbes, 523 U.S. 666 (1998), simply reiterated Turner I’s

conclusion that cable operators’ selection and presentation of programming is speech for

First Amendment purposes. Id. at 674.

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or interferes with their speech. Of course, how the Platforms do or don’t

exercise editorial control is relevant to this inquiry, as it was in Miami Herald

and Turner I. But the Platforms can’t just shout “editorial discretion!” and

declare victory. 16

Premise two of the Platforms’ syllogism is also faulty. Even assuming

“editorial discretion” is a freestanding category of First-Amendment-

protected expression, the Platforms’ censorship doesn’t qualify. Curiously,

the Platforms never define what they mean by “editorial discretion.”

(Perhaps this casts further doubt on the wisdom of recognizing editorial

discretion as a separate category of First-Amendment-protected expression.)

Instead, they simply assert that they exercise protected editorial discretion

because they censor some of the content posted to their Platforms and use

sophisticated algorithms to arrange and present the rest of it. But whatever

the outer bounds of any protected editorial discretion might be, the

Platforms’ censorship falls outside it. That’s for two independent reasons.

First, an entity that exercises “editorial discretion” accepts

reputational and legal responsibility for the content it edits. In the newspaper

context, for instance, the Court has explained that the role of “editors and

16

Our esteemed colleague in dissent makes a similar argument with a different

label. The dissent reads Miami Herald to protect “two levels of publisher speech”: the

published speech itself as well as “the selection process” (or “publishing process”) used

to choose that speech. Post, at 5–6, 11. And it concludes that Section 7 impermissibly

interferes with the Platforms’ publishing process. Id. at 11.

It’s of course true that the right to speak generally entails the right to select what

to speak. But asserting that Section 7 obstructs the Platforms’ “selection process” begs the

question whether the Platforms’ censorship is protected speech at all. If it’s not, then

there’s no First Amendment right for censors to select their targets—just as there’s no

First Amendment right for law schools to select their recruiters, no First Amendment right

for shopping malls to select their pamphleteers, and no First Amendment right for

telephone companies to select which calls to drop.

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editorial employees” generally includes “determin[ing] the news value of

items received” and taking responsibility for the accuracy of the items

transmitted. Associated Press v. NLRB, 301 U.S. 103, 127 (1937). And editorial

discretion generally comes with concomitant legal responsibility. For

example, because of “a newspaper’s editorial judgments in connection with

an advertisement,” it may be held liable “when with actual malice it

publishes a falsely defamatory” statement in an ad. Pittsburgh Press Co. v.

Pittsburgh Comm’n on Human Rels., 413 U.S. 376, 386 (1973). But the

Platforms strenuously disclaim any reputational or legal responsibility for the

content they host. See supra Part III.C.2.a (quoting the Platforms’ adamant

protestations that they have no responsibility for the speech they host); infra

Part III.D (discussing the Platforms’ representations pertaining to 47 U.S.C.

§ 230).

Second, editorial discretion involves “selection and presentation” of

content before that content is hosted, published, or disseminated. See Ark.

Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998); see also Miami

Herald, 418 U.S. at 258 (a newspaper exercises editorial discretion when

selecting the “choice of material” to print). The Platforms do not choose or

select material before transmitting it: They engage in viewpoint-based

censorship with respect to a tiny fraction of the expression they have already

disseminated. The Platforms offer no Supreme Court case even remotely

suggesting that ex post censorship constitutes editorial discretion akin to ex

ante selection. 17 They instead baldly assert that “it is constitutionally

irrelevant at what point in time platforms exercise editorial discretion.” Red

17

The Platforms claim Horton v. City of Houston, 179 F.3d 188 (5th Cir. 1999),

recognized First Amendment rights for organizations that “do not pre-screen submitted

programs.” Id. at 190. Horton is wholly irrelevant. It involved a public forum—a public

access cable channel—and concerned the First Amendment rights of a different party

seeking access to the forum. See id. at 190–91.

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Br. at 25. Not only is this assertion unsupported by any authority, but it also

illogically equates the Platforms’ ex post censorship with the substantive,

discretionary, ex ante review that typifies “editorial discretion” in every

other context. 18

In sum, even if “editorial discretion” is a protected legal category, it’s

far from clear why (even viewpoint-agnostic) content arrangement and (even

infrequent and ex post) censorship should be the criteria for qualification. And

in any event, the Supreme Court has never recognized “editorial discretion”

as a freestanding category of First-Amendment-protected expression.

Rather, the applicable inquiry is whether Section 7 forces the Platforms to

speak or interferes with their speech. Section 7 does neither of those things.

It therefore passes constitutional muster.

18

Our esteemed colleague in dissent suggests that the timing of the Platforms’

censorship doesn’t matter because censorship decisions “can only be made, as a practical

matter, after the appearance of the content on the Platform.” Post, at 13. The dissent’s

factual premise is incorrect: Online platforms can and do moderate submissions before

transmitting them. For example, the New York Times moderates online comments on its

articles before posting them. See The Comments Section, N.Y. Times,

https://help.nytimes.com/hc/en-us/articles/115014792387-The-Comments-Section (last

visited Aug. 6, 2022). That’s arguably the same form of ex ante curation that newspapers

use for other material they publish and that enjoys constitutional protection under Miami

Herald.

If the Platforms wanted the same protections, they could’ve used the same ex ante

curation process. Early online forums and message boards often preapproved all

submissions before transmission. See, e.g., Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995

WL 323710, at *3 (N.Y. Sup. Ct. May 24, 1995) (noting Prodigy’s early policy of “manually

reviewing all messages prior to posting”). Later on, the Platforms made a judgment that

jettisoning editorial discretion to allow instantaneous transmission would make their

Platforms more popular, scalable, and commercially successful. The Platforms thus

disclaimed ex ante curation—precisely because they wanted users to speak without editorial

interference. That decision has consequences. And it reinforces that the users are speaking,

not the Platforms.

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D.

We have no doubts that Section 7 is constitutional. But even if some

were to remain, 47 U.S.C. § 230 would extinguish them. Section 230

provides that the Platforms “shall [not] be treated as the publisher or

speaker” of content developed by other users. Id. § 230(c)(1). Section 230

reflects Congress’s judgment that the Platforms do not operate like

traditional publishers and are not “speak[ing]” when they host user-

submitted content. Congress’s judgment reinforces our conclusion that the

Platforms’ censorship is not speech under the First Amendment.

Congress enacted Section 230 in 1996 to ease uncertainty regarding

online platforms’ exposure to defamation liability for the content they host.

One leading case, Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.

1991), held that an online platform could not be liable absent knowledge of

the defamatory statements, because it was a distributor that did not exercise

meaningful editorial control. See id. at 139–40. But then a different case,

Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct.

May 24, 1995), accepted an argument very similar to the Platforms’ argument

here. It noted that Prodigy’s online platform had “content guidelines”

prohibiting certain obscene and offensive content. Id. at *2. And Prodigy used

an “automatic software screening program” as well as manual review “to

delete notes from its computer bulletin boards” that violated the guidelines.

Id. at *4. The court held that this conduct “constitute[d] editorial control”

over the platform, so the platform was akin to a newspaper and Prodigy could

be held liable for defamation on that basis. Ibid.

Congress disagreed with Stratton Oakmont and abrogated it by

enacting § 230. See H.R. Rep. No. 104-458, at 194 (1996) (“One of the

specific purposes of [§ 230] is to overrule Stratton-Oakmont v. Prodigy and

any other similar decisions which have treated such providers and users as

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publishers or speakers of content that is not their own because they have

restricted access to objectionable material.”). Congress instructed that “No

provider or user of an interactive computer service [i.e., online platform] shall

be treated as the publisher or speaker of any information provided by another

information content provider.” 47 U.S.C. § 230(c)(1). Online platforms are

thus immune from defamation liability for the content they host, unless they

play a part in the “creation or development” of that content. See id.

§ 230(f )(3). And this is true even if the online platforms act “in good faith to

restrict access to or availability of material that the provider or user considers

to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or

otherwise objectionable.” Id. § 230(c)(2).

Section 230 undercuts both of the Platforms’ arguments for holding

that their censorship of users is protected speech. Recall that they rely on two

key arguments: first, they suggest the user-submitted content they host is

their speech; and second, they argue they are publishers akin to a newspaper.

Section 230, however, instructs courts not to treat the Platforms as “the

publisher or speaker” of the user-submitted content they host. Id.

§ 230(c)(1). And those are the exact two categories the Platforms invoke to

support their First Amendment argument. So if § 230(c)(1) is constitutional,

how can a court recognize the Platforms as First-Amendment-protected

speakers or publishers of the content they host?

The Platforms respond that they in fact are speakers and publishers,

and Congress simply instructed courts to pretend they aren’t for purposes of

publishing-related liability. Moreover, the legislature can’t define what

constitutes “speech” under the First Amendment—otherwise, for example,

it could abrogate Miami Herald by simply defining newspapers as “not

publishers.” Because the legislature may not define what constitutes First-

Amendment-protected speech, the Platforms argue § 230 has no bearing on

the constitutional questions in this case.

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It’s obviously true that a legislature can’t define what speech is or is

not protected by the First Amendment. Cf. Marbury, 5 U.S. at 177. It’s also

irrelevant because that’s not what § 230 purports to do. The First

Amendment generally precludes liability based on the content of someone’s

speech or expression. E.g., Cohen v. California, 403 U.S. 15 (1971).

Defamation liability for publishers is one of the several exceptions to this rule.

See generally New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

(relationship between defamation liability and the First Amendment). But

§ 230 creates an exemption from that exception for the “interactive computer

services” that fall within its scope, including the Platforms. And it does so by

stating that they should not be treated as publishers. Thus, § 230 is nothing

more (or less) than a statutory patch to a gap in the First Amendment’s free

speech guarantee. Given that context, it’s strange to pretend that § 230’s

declaration that Platforms “shall [not] be treated as . . . publisher[s]” has no

relevance in the First Amendment context.

Moreover, Congress’s factual determinations do carry weight in

constitutional adjudication. As the Supreme Court has explained, Congress’s

findings on “essentially factual issues . . . are of course entitled to a great deal

of deference.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,

330 n.12 (1985); see also, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,

195–96 (1997) (“Turner II”). And § 230 reflects Congress’s factual

determination that the Platforms are not “publishers.”

Deference to Congress’s judgment is particularly appropriate here

because the Platforms themselves have extensively affirmed, defended, and

relied on that judgment. For example, they’ve asserted that § 230 “promotes

the free exchange of information and ideas over the Internet and prevents the

inevitable chill of speech that would occur if interactive computer services

could be held liable merely for serving as conduits for other parties’

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speech.” 19 Consistent with Congress’s judgment, they’ve told courts

repeatedly that they merely serve as “conduits” for other parties’ speech and

use “neutral tools” to conduct any processing, filtering, or arranging that’s

necessary to transmit content to users. 20 They’ve also repeatedly defended

the wisdom of Congress’s judgment, arguing that § 230 “made it possible for

every major internet service to be built and ensured important values like free

expression and openness were part of how platforms operate.” 21

The Platforms’ position in this case is a marked shift from their past

claims that they are simple conduits for user speech and that whatever might

look like editorial control is in fact the blind operation of “neutral tools.” Two

amici argue that the Platforms are therefore judicially estopped from

asserting that their censorship is First-Amendment-protected editorial

discretion. 22 See In re Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir.

2004) (“Judicial estoppel is a common law doctrine that prevents a party

from assuming inconsistent positions in litigation.”). That’s a fair point. But

in any event, the Platforms’ frequent affirmation of Congress’s factual

judgment underlying § 230 makes us even more skeptical of their radical

19

Brief for Appellees at 1, Klayman v. Zuckerberg, No. 13-7017 (D.C. Cir. Oct. 25,

2013).

20

E.g., Notice of Motion and Motion to Dismiss at 10 n.5, Fields v. Twitter, Inc.,

No. 3:16-cv-00213 (N.D. Cal. Apr. 6, 2016) (“conduit”); Motion to Dismiss at 10, Doe v.

Twitter, Inc., No. 3:21-cv-00485 (N.D. Cal. Mar. 10, 2021) (“neutral tools”); Brief for

Defendants-Appellants at 50, Colon v. Twitter, Inc., No. 21-11283 (11th Cir. Aug. 10, 2020)

(“neutral tools”).

21

Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior? Hearing

Before the S. Comm. on Com., Sci., & Transp., 116th Cong. 2 (2020) [hereinafter Senate

Hearings] (statement of Mark Zuckerberg, CEO, Facebook, Inc.); see also id. at 1 (statement

of Jack Dorsey, CEO, Twitter, Inc.) (arguing that “Section 230 is the internet’s most

important law for free speech and safety”).

22

See Brief for Amici Curiae Heartland Inst. & Am. Principles Project at 12.

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switcheroo that, in this case, they are publishers. Cf. ibid. (doctrine of judicial

estoppel “protect[s] the integrity of the judicial process by preventing parties

from playing fast and loose with the courts to suit the exigencies of self

interest” (quotation omitted)).

The Platforms’ only response is that in passing § 230, Congress

sought to give them an unqualified right to control the content they host—

including through viewpoint-based censorship. They base this argument on

§ 230(c)(2), which clarifies that the Platforms are immune from defamation

liability even if they remove certain categories of “objectionable” content.

But the Platforms’ argument finds no support in § 230(c)(2)’s text or

context. First, § 230(c)(2) only considers the removal of limited categories

of content, like obscene, excessively violent, and similarly objectionable

expression. 23 It says nothing about viewpoint-based or geography-based

censorship. Second, read in context, § 230(c)(2) neither confers nor

contemplates a freestanding right to censor. Instead, it clarifies that

censoring limited categories of content does not remove the immunity

conferred by § 230(c)(1). So rather than helping the Platforms’ case,

§ 230(c)(2) further undermines the Platforms’ claim that they are akin to

newspapers for First Amendment purposes. That’s because it articulates

23

Section 230(c)(2) refers to “obscene, lewd, lascivious, filthy, excessively violent,

harassing, or otherwise objectionable” material. To the extent the Platforms try to extract

an unqualified censorship right from the phrase “otherwise objectionable” in isolation,

that’s foreclosed by the Supreme Court’s repeated instruction that “where general words

follow specific words in a statutory enumeration, the general words are construed to

embrace only objects similar in nature to those objects enumerated by the preceding

specific words.” Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler,

537 U.S. 371, 384 (2003) (quotation omitted); see also, e.g., Yates v. United States, 574 U.S.

528, 545 (2015) (plurality op.).

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Congress’s judgment that the Platforms are not like publishers even when they

engage in censorship. 24

In sum, § 230 reflects Congress’s judgment that the Platforms are not

acting as speakers or publishers when they host user-submitted content.

While a statute may not abrogate constitutional rights, Congress’s factual

judgment about the role of online platforms counsels against finding that the

Platforms “publish” (and hence speak) the content that other users post.

And that’s particularly true here, because the Platforms have long relied on

and vigorously defended that judgment—only to make a stark about-face for

this litigation. Section 230 thus reinforces our conclusion that the Platforms’

censorship is not protected speech under the First Amendment.

E.

The common carrier doctrine is a body of common law dating back

long before our Founding. It vests States with the power to impose

nondiscrimination obligations on communication and transportation

providers that hold themselves out to serve all members of the public without

individualized bargaining. The Platforms are communications firms of

tremendous public importance that hold themselves out to serve the public

without individualized bargaining. And Section 7 of HB 20 imposes a basic

24

The Platforms also suggest, in a single sentence of their brief, that HB 20 is

preempted by § 230(c)(2). The district court did not address this argument, so we are

reluctant to pass on it. Cf. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a

court of review, not of first view.”). Of course, an appellee may urge any ground properly

raised below as an alternative basis for affirmance. See United States v. Am. Ry. Express Co.,

265 U.S. 425, 435–36 (1924). But one sentence is insufficient to adequately brief a claim.

See, e.g., United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010); Ragas v. Tenn. Gas

Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). We therefore hold that the Platforms have

forfeited their preemption argument.

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nondiscrimination requirement that falls comfortably within the historical

ambit of permissible common carrier regulation.

For this reason, to facially invalidate Texas’s nondiscrimination rule

would be a remarkable derogation of core principles of federalism. American

courts have recognized these principles since the Founding and only briefly

abjured them to serve two unfortunate causes: imposing racial segregation

and enforcing a discredited Lochner-era vision of property rights. Accepting

the Platforms’ theory would represent the first time since those ignominious

years that federal courts have prevented a State from requiring interstate

transportation and communications firms to serve customers without

discrimination. Given the firm rooting of common carrier regulation in our

Nation’s constitutional tradition, any interpretation of the First Amendment

that would make Section 7 facially unconstitutional would be highly

incongruous. Common carrier doctrine thus reinforces our conclusion that

Section 7 comports with the First Amendment.

This section (1) begins with a brief primer on the history of common

carrier doctrine. Then it (2) explains why common carrier doctrine permits

Texas to impose Section 7’s nondiscrimination requirement on the

Platforms. And this (3) supports our constitutional holding that the

Platforms’ viewpoint-based censorship is not First-Amendment-protected

speech.

1.

The doctrine’s roots lie in the notion that persons engaged in

“common callings” have a “duty to serve.” This principle has been part of

Anglo-American law for more than half a millennium. For early English

courts, this principle meant that private enterprises providing essential

public services must serve the public, do so without discrimination, and

charge a reasonable rate. The first “carriers” to which this principle was

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applied were ferries. As Justice Newton of the Court of Common Pleas

recounted, a ferry operator is “required to maintain the ferry and to operate

it and repair it for the convenience of the common people.” Trespass on the

Case in Regard to Certain Mills, YB 22 Hen. VI, fol. 14 (C.P. 1444).

By the time of the American Founding, the duty to serve had

crystallized into a key tenet of the common law. English courts applied this

principle to numerous “common callings,” like stagecoaches, barges,

gristmills, and innkeepers. See 3 Blackstone, supra, at *164 (discussing

the duties of innkeepers, bargemasters, and farriers). For example,

Blackstone explained that a public innkeeper offers “an implied engagement

to entertain all persons who travel that way; and upon this universal assumpsit

an action on the case will lie against him for damages, if he without good

reason refuses to admit a traveler.” Ibid. Or as Sir Matthew Hale explained

regarding wharves, when a private person builds the only wharf in a port,

“the wharf and crane and other conveniences are affected with a public

interest, and they cease to be juris privati only.” Matthew Hale, De Portibus

Maris, in A Collection of Tracts Relative to the Law of

England 77–78 (Francis Hargrave ed., 1787). The common law thus

required the wharf owner to serve the public and not to impose

discriminatory or unreasonable rates. See id. at 77 (wharf owner may not take

“arbitrary and excessive duties for cranage”).

The common carrier’s duty to serve without discrimination was

transplanted to America along with the rest of the common law. See

Charles M. Haar & Daniel Wm. Fessler, The Wrong Side

of the Tracks: A Revolutionary Rediscovery of the

Common Law Tradition of Fairness in the Struggle

Against Inequality 109–40 (1986) [hereinafter Haar & Fessler].

It got its first real test with the rise of railroad empires in the second half of

the nineteenth century. Rail companies became notorious for using rate

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differentials and exclusive contracts to control industries dependent on

cross-country shipping, often structuring contracts to give allies (like the

Standard Oil Company) impenetrable monopolies. See id. at 112–15, 129.

American courts, however, often found that these discriminatory practices

violated the railroads’ common carrier obligations. See, e.g., Messenger v. Pa.

R.R. Co., 37 N.J.L. 531, 534 (1874) (refusing to enforce rate differentials

because “the carrier cannot discriminate between individuals for whom he

will render the service”); New England Express Co. v. Me. Cent. R.R. Co., 57

Me. 188, 196 (1869) (rejecting exclusive contract because “[t]he very

definition of a common carrier excludes the idea of the right to grant

monopolies or to give special and unequal preferences”). And even when

courts did not impose common carrier duties, they reaffirmed that state

legislatures were vested with the power to do so by statute, as England did

with the Railway and Canal Act of 1854. See Haar & Fessler, supra, at

115–23; see also, e.g., Fitchburg R.R. Co. v. Gage, 78 Mass. (12 Gray) 393, 398

(1859) (because railroads are common carriers, unequal rates are “very fully,

and reasonably, subjected to legislative supervision and control”).

The telegraph was the first communications industry subjected to

common carrier laws in the United States. See Genevieve Lakier, The Non-

First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2320–

24 (2021). Invented in 1838, the telegraph revolutionized how people

engaged with the media and communicated with each other over the next half

century. But by the end of the nineteenth century, legislators grew

“concern[ed] about the possibility that the private entities that controlled

this amazing new technology would use that power to manipulate the flow of

information to the public when doing so served their economic or political

self-interest.” Id. at 2321. These fears proved well-founded. For example,

Western Union, the largest telegraph company, sometimes refused to carry

messages from journalists that competed with its ally, the Associated Press—

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or charged them exorbitant rates. See id. at 2321–22. And the Associated

Press in turn denied its valuable news digests to newspapers that criticized

Western Union. See ibid. Western Union also discriminated against certain

political speech, like strike-related telegraphs. See id. at 2322. And it was

widely believed that Western Union and the Associated Press “influenc[ed]

the reporting of political elections in an effort to promote the election of

candidates their directors favored.” Ibid.; see, e.g., The Blaine Men Bluffing,

N.Y. Times, Nov. 6, 1884, at 5 (accusing them of trying to influence the

close presidential election of 1884 by misreporting and delaying the

transmission of election returns).

In response, States enacted common carrier laws to limit

discrimination in the transmission of telegraph messages. The first such law,

passed by New York, required telegraph companies to “receive d[i]spatches

from and for . . . any individual, and on payment of their usual charges . . . to

transmit the same with impartiality and good faith.” Act of April 12, 1848,

ch. 265, § 11, 1848 N.Y. Laws 392, 395. New York further required such

companies to “transmit all d[i]spatches in the order in which they [we]re

received.” Id. § 12. Many States eventually passed similar laws, see Lakier,

supra, at 2320, 2322, and Congress ultimately mandated that telegraph

companies “operate their respective telegraph lines as to afford equal

facilities to all, without discrimination in favor of or against any person,

company, or corporation whatever.” Telegraph Lines Act, ch. 772, § 2, 25

Stat. 382, 383 (1888).

Courts considering challenges to these laws—or requests to impose

common carrier duties even in their absence—had to grapple with deciding

whether and to what extent the common carrier doctrine applied to new

innovations and technologies. For transportation and communications firms,

courts focused on two things. First, did the carrier hold itself out to serve any

member of the public without individualized bargaining? As Justice Story had

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explained in the transportation context, “[t]o bring a person within the

description of a common carrier, he must exercise it as a public employment;

he must undertake to carry goods for persons generally; and he must hold

himself out as ready to engage in the transportation of goods for hire as a

business, not as a casual occupation.” Joseph Story, Commentaries

on the Law of Bailments § 495 (9th ed. 1878).

Courts applied this same holding-out test to novel communications

enterprises. For example, in State ex rel. Webster v. Nebraska Telephone Co.,

22 N.W. 237 (Neb. 1885), a Nebraska lawyer sought a writ of mandamus to

compel a telephone company to put a telephone in his office. The Supreme

Court of Nebraska granted the writ, explaining that the company “ha[d]

undertaken with the public to send messages from its instruments, one of

which it propose[d] to supply to each person or interest requiring it.” Id. at

239. Because the company had “so assumed and undertaken to the public,”

it could not arbitrarily deny the lawyer a telephone. Ibid. Other courts agreed

and clarified that telephone companies owed this common carrier obligation

even though they also imposed “reasonable rules and regulations” upon their

customers. Chesapeake & Potomac Tel. Co. v. Balt. & Ohio Tel. Co., 7 A. 809,

811 (Md. 1887); see also, e.g., Walls v. Strickland, 93 S.E. 857, 858 (N.C. 1917)

(describing this rule as “well settled” by “numerous cases”).

Second, drawing on Hale’s influential seventeenth-century

formulation, courts considered whether the transportation or

communications firm was “affected with a public interest.” This test might

appear unhelpful, but it was “quickened into life by interpretation” over

centuries of common law decisions. See Walton H. Hamilton, Affectation with

Public Interest, 39 Yale L.J. 1089, 1090 (1930). Courts applying this test

looked to whether a firm’s service played a central economic and social role

in society. This discussion by the Supreme Court of Indiana is an instructive

example:

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The telephone is one of the remarkable productions of the

present century, and, although its discovery is of recent date, it

has been in use long enough to have attained well-defined

relations to the general public. It has become as much a matter

of public convenience and of public necessity as were the

stage-coach and sailing vessel a hundred years ago, or as the

steam-boat, the railroad, and the telegraph have become in later

years. It has already become an important instrument of

commerce. No other known device can supply the

extraordinary facilities which it affords. It may therefore be

regarded, when relatively considered, as an indispensable

instrument of commerce. The relations which it has assumed

towards the public make it a common carrier of news—a

common carrier in the sense in which the telegraph is a

common carrier—and impose upon it certain well-defined

obligations of a public character.

Hockett v. Indiana, 5 N.E. 178, 182 (Ind. 1886); see also, e.g., Webster, 22 N.W.

at 239 (“That the telephone, by the necessities of commerce and public use,

has become a public servant, a factor in the commerce of the nation, and of a

great portion of the civilized world, cannot be questioned.”).

In determining whether a communications firm was “affected with a

public interest,” courts also considered the firm’s market share and the

relevant market dynamics. In Hale’s original formulation, if a wharf owner

operated the “only [wharf ] licensed by the queen” or if “there [wa]s no other

wharf in that port,” then the wharf was “affected with a public interest,” and

the owner acquired a duty to serve without discrimination. Hale, supra, at 77–

78. Similarly, a railroad, telegraph, or telephone company’s status as the only

provider in a region heavily suggested it was affected with the public interest.

See, e.g., Webster, 22 N.W. at 238 (“While there is no law giving [the phone

company] a monopoly[,] . . . the mere fact of this territory being covered by

the ‘plant’ of [the company], from the very nature and character of its

business, gives it a monopoly of the business which it transacts.”).

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When state legislatures or state courts imposed new common carrier

requirements, affected firms often sought to evade them by bringing

constitutional claims in federal court. The landmark case is Munn v. Illinois,

94 U.S. 113 (1876). Illinois passed a statute regulating railroads and grain

elevators. Among other things, the statute regulated grain elevators’ rates

and prohibited rate discrimination. See id. at 117. Munn & Scott, proprietors

of a Chicago grain elevator, brought a litany of constitutional challenges to

Illinois’s law, arguing that it violated the Commerce and Port Preference

Clauses of Article I, as well as the Due Process and Equal Protection Clauses

of the Fourteenth Amendment. See id. at 119–20. The thrust of the challenge

was that Illinois’s law subverted private property rights without

compensation and without sufficient justification. See, e.g., id. at 133.

The Supreme Court rejected Munn & Scott’s claims and held that

state legislatures may constitutionally regulate private firms if the service

they provide is “affected with a public interest.” Id. at 130. The Court

expounded at length “the doctrine which Lord Hale has so forcibly stated,”

approving Hale’s formulation and tracing its adoption and development in

American common law. See id. at 126–30. It then explained that the Illinois

legislature could have reasonably determined that grain elevators were

affected with a public interest. That’s because they were enormously

important to the agriculture and shipping industries: They stood in the

“gateway of commerce” and provided an indispensable link between western

grain and eastern markets. Id. at 132. And while there were fourteen grain

elevators in Chicago, controlled by nine firms, the market was small and

interconnected enough to be ripe for abuse if state regulation was wholly

prohibited. See id. at 131.

After Munn, the Supreme Court repeatedly upheld common carrier

regulations against constitutional challenges. The same year, for example, it

easily rejected a railroad’s challenge to rate regulation and nondiscrimination

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requirements imposed by the Iowa legislature. See Chi., Burlington & Quincy

R.R. Co. v. Iowa, 94 U.S. 155, 161 (1876) (holding that railroads are “engaged

in a public employment affecting the public interest, and, under [Munn v.

Illinois, are] subject to legislative control as to their rates of fare and freight,

unless protected by their charters”). It similarly rejected a constitutional

challenge to a state legislature’s imposition of a duty on telegraph companies

to deliver messages with “impartiality and good faith.” W. Union Tel. Co. v.

James, 162 U.S. 650, 651 (1896).

The Court deviated from this path only briefly and only during an

ignominious period of history marked by racism and the now-discredited

theory of Lochner v. New York, 198 U.S. 45 (1905). Shortly after Munn, for

example, the Court considered a Louisiana law that required common

carriers operating steamboats, railroads, and other vehicles to admit persons

equally, without segregating on the basis of race. Hall v. De Cuir, 95 U.S. 485,

486 (1877). The Court sustained a constitutional challenge to the law on the

ground that it regulated interstate commerce and violated the (negative or

dormant) Commerce Clause. See id. at 490. Although the law only applied in

Louisiana, the Court found it “impose[d] a direct burden upon inter-state

commerce” because “[a] passenger in the cabin set apart for the use of whites

without the State must, when the boat comes within, share the

accommodations of that cabin with such colored persons as may come on

board afterwards, if the law is enforced.” Id. at 488–89.

Moreover, during the heyday of Lochner’s substantive due process

misadventure, the Court repeatedly rejected States’ arguments that various

industries were “affected with a public interest” and often invalidated state

laws that included nondiscrimination rules. E.g., Chas. Wolff Packing Co. v.

Ct. of Indus. Rels., 262 U.S. 522, 544 (1923) (invalidating state law regulating

wages in the meat-packing industry); cf. Ray A. Brown, Due Process of Law,

Police Power, and the Supreme Court, 40 Harv. L. Rev. 943, 944 (1927)

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(noting that the Supreme Court declared more economic and social

regulations unconstitutional between 1920 and 1927 than during the

preceding 52 years).

The Court has obviously rejected both Lochner and the odious racism

that infected its decisions in the era of Hall and Plessy v. Ferguson, 163 U.S.

537 (1896). The Platforms have pointed to no case since that time—and we

are not aware of any—sustaining a constitutional challenge to a state law

imposing nondiscrimination obligations on a common carrier.

2.

Texas permissibly determined that the Platforms are common carriers

subject to nondiscrimination regulation. That’s because the Platforms are

communications firms, hold themselves out to serve the public without

individualized bargaining, and are affected with a public interest.

To state the obvious, the Platforms are communications firms. The

Platforms halfheartedly suggest that they are not “members of the

‘communications industry’” because their mode of transmitting expression

differs from what other industry members do. But that’s wrong. The whole

purpose of a social media platform—as aptly captured in HB 20’s definitional

provisions—is to “enable[] users to communicate with other users.” Tex.

Bus. & Com. Code § 120.001(1). The Platforms’ own representations

confirm this—for example, Facebook’s Terms of Service indicates its

purpose is to enable users to “communicate with friends, family, and

others.” 25 In that sense, the Platforms are no different than Verizon or

AT&T.

25

Facebook Terms, § 1; see also Twitter Terms, § 3 (purpose of Twitter is to host

“Content” and “communications”).

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The Platforms also hold themselves out to serve the public. 26 They

permit any adult to make an account and transmit expression after agreeing

to the same boilerplate terms of service. They’ve thus represented a

“willingness to carry [anyone] on the same terms and conditions.” Semon v.

Royal Indem. Co., 279 F.2d 737, 739 (5th Cir. 1960).

The Platforms resist this conclusion, arguing that they have not held

themselves out to serve the public equally. That’s so, they contend, because

they are only willing to do business with users who agree to their terms of

service. But requiring “compliance with their reasonable rules and

regulations” has never permitted a communications firm to avoid common

carrier obligations. Chesapeake, 7 A. at 811. The relevant inquiry isn’t

whether a company has terms and conditions; it’s whether it offers the “same

terms and conditions [to] any and all groups.” Semon, 279 F.2d at 739

(emphasis added). Put differently, the test is whether the company “make[s]

individualized decisions, in particular cases, whether and on what terms to

deal.” FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (quotation

omitted). Here, it’s undisputed the Platforms apply the same terms and

conditions to all existing and prospective users.

The Platforms also contend they are not open to the public generally

because they censor and otherwise discriminate against certain users and

expression. To the extent the Platforms are arguing that they are not common

carriers because they filter some obscene, vile, and spam-related expression,

this argument lacks any historical or doctrinal support. For example, phone

companies are privileged by law to filter obscene or harassing expression, and

they often do so. 47 U.S.C. § 223; see, e.g., Carlin Commc’ns, Inc. v. Mountain

States Tel. & Tel. Co., 827 F.2d 1291, 1292 (9th Cir. 1987). Yet they’re still

26

Indeed, one Platform has described its purpose as “to serve the public

conversation.” Senate Hearings, supra, at 1 (statement of Jack Dorsey, CEO, Twitter, Inc.).

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regulated as common carriers. Similarly, transportation providers may eject

vulgar or disorderly passengers, yet States may nonetheless impose common

carrier regulations prohibiting discrimination on more invidious grounds.

E.g., Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975).

The Platforms nonetheless contend that they cannot be regulated as

common carriers because they engage in viewpoint-based censorship—the

very conduct common carrier regulation would forbid. This contention is

upside down. The Platforms appear to believe that any enterprise can avoid

common carrier obligations by violating those same obligations. That is

obviously wrong and would rob the common carrier doctrine of any content.

The Platforms’ contention also involves a fair bit of historical amnesia.

As discussed earlier, telegraph companies once engaged in extensive

viewpoint-based discrimination, but that did not immunize them from

common carrier regulation. Rather, for most legislators and courts, it made

such regulation all the more urgent. See Lakier, supra, at 2322–23. And nearly

every other industry historically subjected to common carrier regulation

initially discriminated against their customers and sought the right to

continue to do so. See, e.g., Messenger, 37 N.J.L. at 532–33 (railroad); Munn,

94 U.S. at 119–20 (grain elevators); Webster, 22 N.W. at 238 (telephone);

Portland Nat. Gas & Oil Co. v. State ex rel. Kern, 34 N.E. 818, 818 (Ind. 1893)

(gas); City of Danville v. Danville Water Co., 53 N.E. 118, 121 (Ill. 1899)

(water). The Platforms offer no reason to adopt an ahistorical approach under

which a firm’s existing desire to discriminate against its customers somehow

gives it a permanent immunity from common carrier nondiscrimination

obligations.

Texas also reasonably determined that the Platforms are “affected

with a public interest.” Numerous members of the public depend on social

media platforms to communicate about civic life, art, culture, religion,

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science, politics, school, family, and business. The Supreme Court in 2017

recognized that social media platforms “for many are the principal sources

for knowing current events, checking ads for employment, speaking and

listening in the modern public square, and otherwise exploring the vast

realms of human thought and knowledge.” Packingham, 137 S. Ct. at 1737.

The Court’s “modern public square” label reflects the fact that in-person

social interactions, cultural experiences, and economic undertakings are

increasingly being replaced by interactions and transactions hosted or

facilitated by the Platforms. And if anything, the Platforms’ position as the

modern public square has only become more entrenched in the four years

between Packingham and the Texas legislature’s finding, as the public’s usage

of and dependance on the Platforms has continued to increase. 27

The centrality of the Platforms to public discourse is perhaps most

vividly illustrated by multiple federal court of appeals decisions holding that

the replies to a public official’s Twitter feed constitute a government “public

forum” for First Amendment purposes. See Knight First Amend. Inst. v.

Trump, 928 F.3d 226, 237 (2d Cir. 2019), vacated, 141 S. Ct. 1220 (2021)

(mem.); Garnier v. O’Connor-Ratcliff, --- F.4th ----, 2022 WL 2963453, at *15

(9th Cir. July 27, 2022). 28 These decisions reflect the modern intuition that

the Platforms are the forum for political discussion and debate, and exclusion

27

See Brooke Auxier & Monica Anderson, Social Media Use in 2021, Pew

Research Ctr. (Apr. 7, 2021), https://perma.cc/TR42-LDDT; see also Daily Time

Spent on Social Networking by Internet Users Worldwide from 2012 to 2022, Statista,

https://www.statista.com/statistics/433871/daily-social-media-usage-worldwide/ (last

visited Aug. 6, 2022) (stating that in 2022, the average American spends 123 minutes per

day on social media).

28

See also Knight, 141 S. Ct. at 1221 (Thomas, J., concurring) (noting the tension

between holding a Platform account to be a government public forum and the notion that

the Platforms have no nondiscrimination obligations and may censor a user “at any time

for any reason or no reason”).

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from the Platforms amounts to exclusion from the public discourse. And for

many, the Platforms are also no less central to quotidian discussions about

matters like school, family, and business, than they are to debates about

politics, science, and religion.

In addition to their social importance, the Platforms play a central role

in American economic life. For those who traffic in information—journalists,

academics, pundits, and the like—access to the Platforms can be

indispensable to vocational success. That’s because in the modern economy,

the Platforms provide the most effective way to disseminate news,

commentary, and other information. The same is true for all sorts of cultural

figures, entertainers, and educators, a growing number of whom rely for

much or all of their income on monetizing expression posted to the Platforms.

Finally, even people and companies who traffic in physical goods often lean

heavily on the Platforms to build their brand and market their products to

consumers. That’s why the Platforms, which earn almost all their revenue

through advertising, are among the world’s most valuable corporations.

Thus, just like the telephone a century ago, the Platforms have become a key

“factor in the commerce of the nation, and of a great portion of the civilized

world.” Webster, 22 N.W. at 239. Or at the very least, one cannot say the

Texas legislature’s judgment to that effect was unreasonable.

It’s also true that each Platform has an effective monopoly over its

particular niche of online discourse. Many early telephone companies did not

have legal monopolies, but as a practical matter, they monopolized their

geographic area due to the nature of the telephone business. See id. at 238.

Likewise with the Platforms: While no law gives them a monopoly, “network

effects entrench these companies” because it’s difficult or impossible for a

competitor to reproduce the network that makes an established Platform

useful to its users. Knight, 141 S. Ct. at 1224 (Thomas, J., concurring).

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Academics have explored this concept in depth, 29 but to those familiar with

the Platforms, a few concrete examples can easily demonstrate the point. To

effectively monetize, say, carpet cleaning instructional videos (a real niche),

one needs access to YouTube. Alternatively, sports “influencers” need

access to Instagram. And political pundits need access to Twitter. It’s thus

no answer to tell the censored athlete, as the Platforms do, that she can just

post from a different platform. As Justice Thomas has aptly pointed out,

that’s like telling a man kicked off the train that he can still “hike the Oregon

Trail.” Id. at 1225. The Platforms’ entrenched market power thus further

supports the reasonableness of Texas’s determination that the Platforms are

affected with a public interest. Cf. Munn, 94 U.S. at 131 (market dynamics

supported state legislature’s affectation finding when nine firms controlled

the fourteen major grain elevators serving Chicago).

The Platforms and their amici make three counterarguments that

merit additional responses. First, they suggest that common carrier

regulations are impermissible—or at least disfavored—unless the

government has contributed to a carrier’s monopoly, such as by licensing a

legal monopoly or acquiring property for the carrier through eminent domain.

That’s obviously wrong. Recall that in Hale’s original formulation, common

carrier treatment was appropriate if a proprietor operated the “only [wharf]

licensed by the queen” or if there was simply “no other wharf in that port.”

Hale, supra, at 77. American courts followed this formulation and did not

require a government-conferred monopoly. E.g., Webster, 22 N.W. at 238.

29

See James Alleman, Edmond Baranes & Paul Rappoport, Multisided Markets and

Platform Dominance, in Applied Economics in the Digital Era (James Alleman

et al. eds. 2020); Kenneth A. Bamberger & Orly Lobel, Platform Market Power, 32

Berkeley Tech. L.J. 1051 (2017).

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Even if the Platforms were right, however, the government has

conferred a major benefit on the Platforms by enacting § 230. See supra Part

III.D. As the Platforms have acknowledged, “Section 230 made it possible

for every major internet service to be built.” 30 By their own admission, the

Platforms are just as dependent on § 230’s liability shield as the old railroad

companies were on the ability to traverse land acquired via eminent domain.

Accordingly, the Texas legislature reasonably determined that the Platforms

“have enjoyed governmental support in the United States” and that this

supports common carrier regulation. 31

Second, the Platforms rely on a handful of modern precedents. Chief

among them is U.S. Telecomm. Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017).

There, Judge Srinivasan and then-Judge Kavanaugh sparred over the validity

of the FCC’s net neutrality rule, which purported to use the FCC’s authority

under the Telecommunications Act of 1996 to impose common carrier

obligations on internet service providers. See id. at 418 (Kavanaugh, J.,

dissenting from the denial of rehearing en banc). Because the primary

question was one of a federal agency’s regulatory authority, see id. at 418–26,

the case has little relevance to a State’s invocation of the deeply rooted

30

Senate Hearings, supra, at 2 (statement of Mark Zuckerberg, CEO, Facebook,

Inc.).

31

Amicus TechFreedom argues that if common carrier regulations are based on

this sort of quid pro quo relationship, and § 230 is the quid, then a state government

shouldn’t be able to exact the quo. Even apart from the fact that the common carrier

doctrine does not require a quid pro quo arrangement, the argument that the quid and the

quo must come from the same government fails on historical terms. For example,

nineteenth-century railroads were chartered (the quid) by state governments, yet

comprehensive common carrier regulations (the quo) were imposed by the federal

government through the Interstate Commerce Act of 1887 and the Hepburn Amendments

of 1906. See Haar & Fessler, supra, at 137–40.

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common carrier doctrine. 32 And while it’s true that then-Judge Kavanaugh

also argued that the net neutrality rule violated the First Amendment, that

was because “the FCC ha[d] not even tried to make a market power

showing.” See id. at 418; see also id. at 435 (rule would be constitutional upon

showing of market power). Here, the Texas legislature found that “social

media platforms with the largest number of users are common carriers by

virtue of their market dominance,” and this finding is reasonable. See supra

at 57–58.

At any rate, Turner I is the closest Supreme Court case from the

modern era, and it provides no help to the Platforms. There the Court, by a

5-4 vote, refused to hold unlawful federal regulations requiring cable

operators to set aside certain channels for commercial broadcast stations. See

512 U.S. at 661–68. Most significant for our purposes, even the four

dissenting Justices believed Congress could have permissibly imposed more

modest common carrier regulations, rather than singling out broadcasters for

preferential treatment as it had done. Id. at 684 (O’Connor, J., concurring in

part and dissenting in part); see also ibid. (“[I]t stands to reason that if

Congress may demand that telephone companies operate as common

carriers, it can ask the same of cable companies; such an approach would not

suffer from the defect of preferring one speaker to another.”).

Third, the Platforms and their amici argue that they are not engaged

in “carriage.” They claim that “at its core,” the common carrier doctrine is

32

The Platforms’ contention that federal law does not treat them as common

carriers is similarly beside the point. See 47 U.S.C. § 223(e)(6) (clarifying that certain

provisions of federal law should not “be construed to treat interactive computer services

as common carriers”). No party is arguing that the Platforms’ common carrier obligations

stem from federal law. The question is whether the State of Texas can impose common

carrier obligations on the Platforms. And no party has argued that § 223(e)(6) preempts

state common carrier regulation.

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about “the transportation of property”—that is, carrying literal things. But

rather than transport some physical thing, the Platforms “process” and

“manipulate” data in their users’ newsfeeds. They claim this distinction

between “processing” and “carriage” puts them outside the realm of the

common carrier doctrine.

There is no basis for the Platforms’ wooden metaphysical literalism.

A distinction between literal “carriage” and the processing of data obviously

would not fit the doctrine. Were that the case, the telephone and telegraph

could never have been regulated as common carriers. So to make the

purported distinction work, the Platforms and their amici ask us to conceive

of telegraphy and telephony as conveying a “widget of private information”

as a discrete “commodity product.” Brief for Amicus Curiae TechFreedom

at 7–8.

This wordgame defies both law and logic. First, it has no doctrinal

support. The Platforms and their amici cite one case asserting that “[t]he

transportation of property [is the] business of common carriers,” German

All. Ins. Co. v. Lewis, 233 U.S. 389, 406 (1914), but they offer no support

whatsoever for the proposition that property transportation is the only thing

that defines common carriers. Second, because the Platforms, telephones,

and telegraphs all process data at some level, the Platforms’ purported

standard collapses into a distinction between “more complicated

communications processing” (e.g., social media) and “less complicated

communications processing” (e.g., telephony). There’s no logical or

historical basis to adopt this framework. After all, it would have prevented

the common carrier doctrine from ever being applied to a more sophisticated

communications medium than the one it began with.

Relatedly, the Platforms argue that even if they can be regulated as

common carriers, Section 7 goes beyond the permissible scope of the

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common carrier doctrine. That’s because it requires more than simple

“carriage,” or hosting. It also prohibits censorship that “den[ies] equal

access or visibility to, or otherwise discriminate[s] against expression.” Tex.

Civ. Prac. & Rem. Code § 143A.001(1). The Platforms claim this will

interfere with how they process the communications they host and transmit.

This is simply another version of the argument that social media is too

complicated a medium to bear common carrier nondiscrimination

obligations. Common carriers have not normally been able to discharge their

duties by hosting or transmitting communications per se. Rather, they’ve

been required to do so without discriminating—with “impartiality and good

faith,” as required by many state laws concerning telegraph transmission. W.

Union, 162 U.S. at 651. States could even require telegraph companies to

“transmit all d[i]spatches in the order in which they are received.” Act of

April 12, 1848, ch. 265, § 12, 1848 N.Y. Laws 392, 395. Section 7 thus

imposes ordinary common carrier nondiscrimination obligations, drafted to

fit the particularities of the Platforms’ medium.

At bottom, the Platforms ask us to hold that in the long technological

march from ferries and bakeries, to barges and gristmills, to steamboats and

stagecoaches, to railroads and grain elevators, to water and gas lines, to

telegraph and telephone lines, to social media platforms—that social media

marks the point where the underlying technology is finally so complicated

that the government may no longer regulate it to prevent invidious

discrimination. But we may not inter this venerable and centuries-old

doctrine just because Twitter’s censorship tools are more sophisticated than

Western Union’s. Cf. Brown v. Ent. Merch. Ass’n, 564 U.S. 786, 790 (2011)

(“[B]asic principles of freedom of speech and the press, like the First

Amendment’s command, do not vary when a new and different medium for

communication appears.” (quotation omitted)).

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3.

The Platforms next argue that even if Section 7 is a valid common

carrier regulation, it’s still unconstitutional. That’s wrong for two reasons.

First, it’s instructive that federal courts have been generally skeptical

of constitutional challenges to States’ common carrier nondiscrimination

rules. Indeed, it appears that federal courts have only ever sustained such

challenges for the now-discredited purposes of imposing racial segregation

and enforcing a Lochner-era conception of private property rights. See supra

Part III.E.1. Significantly, the Platforms rely on the dissenting opinion in

Nebbia v. New York, 291 U.S. 502 (1934), a case in which a majority of the

Court began to repudiate Lochner. They cite Justice McReynolds’s dissent

for the proposition that “a state may not by legislative fiat convert a private

business into a public utility.” Red Br. at 36 (quoting Nebbia, 291 U.S. at 555

(McReynolds, J., dissenting)). 33 Section 7 imposes a nondiscrimination

requirement that comes nowhere close to making the Platforms public

utilities. But more importantly, the Supreme Court has rejected Lochner and

Justice McReynolds’s position. See, e.g., Ferguson v. Skrupa, 372 U.S. 726,

729 (1963). This court may not resurrect it, and the Platforms’ arguments

provide little reassurance that we could hold Section 7 unconstitutional

without doing so.

33

This and other frequent invocations of private property rights suggest the

Platforms’ real complaint is with the Texas legislature meddling in their right to control

their own business. But the Platforms have not brought a regulatory takings claim. Cf. Pa.

Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Instead, they’ve asked for the more drastic

remedy of invalidation of an economic regulation—a remedy the federal courts have not

been in the business of providing since the Lochner era. Given the courts’ deference to state

economic regulations for the last eight decades, “it would be freakish to single out” this

historically grounded nondiscrimination requirement “for special treatment.” Cf. Gundy

v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring).

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Second, the fact that the Platforms fall within the historical scope of

the common carrier doctrine further undermines their attempt to

characterize their censorship as “speech.” As discussed at length earlier, the

Platforms’ primary constitutional argument is that they so closely oversee

the speech on their Platforms that they exercise “editorial discretion” akin

to a newspaper. But the same characteristics that make the Platforms

common carriers—first, holding out their communications medium for the

public to use on equal terms; and second, their well-understood social and

economic role as facilitators of other people’s speech—render them not

newspapers but instead indispensable conduits for transporting information.

Put differently, it’s bizarre to posit that the Platforms provide much of the

key communications infrastructure on which the social and economic life of

this Nation depends, and yet conclude each and every communication

transmitted through that infrastructure still somehow implicates the

Platforms’ own speech for First Amendment purposes.

F.

Suppose Section 7 did implicate the Platforms’ First Amendment

rights. The Platforms would still not be entitled to facial pre-enforcement

relief. That’s because (1) it’s a content- and viewpoint-neutral law and is

therefore subject to intermediate scrutiny at most. And (2) Texas’s interests

undergirding Section 7 are sufficient to satisfy that standard.

1.

Even if Section 7 burdens the Platforms’ First Amendment rights, it

does so in a content-neutral way. Such “regulations that are unrelated to the

content of speech are subject to an intermediate level of scrutiny” under the

First Amendment. Turner I, 512 U.S. at 642 (quotation omitted).

The “principal inquiry in determining content neutrality is whether

the government has adopted a regulation of speech because of agreement or

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disagreement with the message it conveys.” Ibid. Accordingly, “[a]s a

general rule, laws that by their terms distinguish favored speech from

disfavored speech on the basis of the ideas or views expressed are content

based.” Id. at 643. But “laws that confer benefits or impose burdens on

speech without reference to the ideas or views expressed are in most

instances content neutral.” Ibid. Or as the Court put it more recently, “the

phrase ‘content based’ requires a court to consider whether a regulation of

speech ‘on its face’ draws distinctions based on the message a speaker

conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); accord City of

Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471–74

(2022).

Section 7 is content-neutral. Even assuming viewpoint-based

censorship is speech, the burden Section 7 imposes on that speech does not

depend on “the ideas or views [it] expresse[s].” Turner I, 512 U.S. at 643. In

other words, Section 7’s burden in no way depends on what message a

Platform conveys or intends to convey through its censorship. That’s

because Section 7 applies equally regardless of the censored user’s viewpoint,

and regardless of the motives (stated or unstated) animating the Platform’s

viewpoint-based or geography-based censorship.

The Platforms have several responses. First, they argue Section 7 is

content-based because its definition of “social media platform” excludes

news, sports, and entertainment websites. Specifically, Section 7 does not

apply to “an online service, application, or website”:

(i) that consists primarily of news, sports, entertainment, or

other information or content that is not user generated but is

preselected by the provider; and

(ii) for which any chat, comments, or interactive functionality

is incidental to, directly related to, or dependent on the

provision of the content described by Subparagraph (i).

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Tex. Bus. & Com. Code § 120.001(1)(C).

This definition does not render HB 20 content-based because the

excluded websites are fundamentally dissimilar mediums. And “the fact that

a law singles out a certain medium . . . is insufficient by itself to raise First

Amendment concerns.” Turner I, 512 U.S. at 660 (quotation omitted). HB

20 defines “social media platform” to sweep in websites that exist primarily

to host and transmit user-generated speech. Section 120.001(1)(C)(i) does

not create a content-based exemption from Section 7’s coverage. Rather, it

excludes the distinct medium of websites whose primary purpose is not the

sharing of user-generated speech but rather the dissemination of information

“preselected by the provider.” Under Turner I, targeting a particular

medium does not render Section 7 content-based.

Second, the Platforms argue Section 7 is content-based because it

permits certain narrow kinds of censorship. Section 7 permits Platforms to

censor, for example, expression directly inciting criminal activity and specific

threats of violence. See Tex. Civ. Prac. & Rem. Code § 143A.006(a).

But the Platforms offer no evidence whatsoever that Texas permitted these

narrow categories of censorship “because of agreement or disagreement with

the message [such censorship] conveys.” Turner I, 512 U.S. at 642 (quotation

omitted). Rather, Section 7 permits censorship of expression that’s

unprotected by the First Amendment. See, e.g., Brandenburg v. Ohio, 395 U.S.

444, 447–48 (1969) (incitement unprotected). So it’s clear that the narrow

permission to censor afforded by § 143A.006 is not “based on hostility—or

favoritism—towards the underlying message expressed” by the Platforms’

censorship. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). Section

143A.006 therefore does not render Section 7 content-based.

Third, the Platforms argue that Section 7 triggers strict scrutiny

because it targets only the largest social media platforms: those with more

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than 50 million users. They contend this alone requires strict scrutiny, relying

principally on Minneapolis Star and Tribune Co. v. Minnesota Commissioner of

Revenue, 460 U.S. 575 (1983), and Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987). Minneapolis Star involved a challenge to Minnesota’s

“use tax” on paper and ink products used by the press. 460 U.S. at 577.

Because the tax exempted the first $100,000 of paper and ink used, only the

largest eleven or so publishers incurred any tax liability in a given year. Id. at

578. The Court held that “Minnesota’s ink and paper tax violates the First

Amendment not only because it singles out the press, but also because it

targets a small group of newspapers.” Id. at 591. Similarly, in Arkansas

Writers’ Project, the Court held unconstitutional another tax that “target[ed]

a small group within the press,” this time by imposing a sales tax on

magazines but exempting religious, trade, professional, and sports

magazines. 481 U.S. at 229; see also Grosjean v. Am. Press Co., 297 U.S. 233,

251 (1936) (holding unconstitutional a tax singling out newspapers with

weekly circulations above 20,000).

These taxation cases are inapposite. As the Court later explained,

Minneapolis Star and Arkansas Writers’ Project “demonstrate that differential

taxation of First Amendment speakers is constitutionally suspect when it

threatens to suppress the expression of particular ideas or viewpoints.”

Leathers v. Medlock, 499 U.S. 439, 447 (1991). But “differential taxation of

speakers, even members of the press, does not implicate the First

Amendment unless the tax is directed at, or presents the danger of

suppressing, particular ideas,” as “was the case in Grosjean, Minneapolis

Star, and Arkansas Writers’ [Project].” Id. at 453. Section 7’s focus on a

particular subset of firms is not directed at suppressing particular ideas or

viewpoints, as Minnesota’s and Arkansas’s discriminatory taxes were.

Rather, the law aims at protecting a diversity of ideas and viewpoints by

focusing on the large firms that constitute “the modern public square.”

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Packingham, 137 S. Ct. at 1737. Nor is there any evidence in the record before

us that Section 7 could in fact suppress any constitutionally protected speech

by anyone. See supra Part III.A. Minneapolis Star and Arkansas Writers’ Project

thus provide no basis for subjecting Section 7 to strict scrutiny.

Finally, the Platforms argue that Section 7 impermissibly targeted the

largest social media platforms because of the Texas legislature’s particular

disagreement with those Platforms’ partisan censorship efforts. This

argument fails on both the facts and the law. On the facts, the Platforms

present no real evidence of the Texas legislature’s alleged improper motives.

Instead, they simply ask us to infer an improper motive from various

unexplained amendments to the user threshold number and the fact that HB

20 lacks legislative findings regarding the user threshold. But it’s just as

plausible to infer that the legislature simply picked a number that would

sweep in the largest platforms most salient to public discussion and debate in

Texas. And on the law, we may not hold unconstitutional “a statute that is

. . . constitutional on its face, on the basis of what fewer than a handful of

Congressmen said about it.” United States v. O’Brien, 391 U.S. 367, 384

(1968). We thus hold that even if Section 7 regulated the Platforms’ speech,

intermediate scrutiny would apply.

2.

Section 7 satisfies intermediate scrutiny. “A content-neutral

regulation will be sustained under the First Amendment if it advances

important governmental interests unrelated to the suppression of free speech

and does not burden substantially more speech than necessary to further

those interests.” Turner II, 520 U.S. at 189. We hold that Section 7’s

regulation of viewpoint-based censorship meets each of these requirements.

First, Section 7 advances an important governmental interest. HB

20’s legislative findings assert that Texas “has a fundamental interest in

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protecting the free exchange of ideas and information in this state.” And

Supreme Court precedent confirms that this is “a governmental purpose of

the highest order.” Turner I, 512 U.S. at 663; see ibid. (“[A]ssuring that the

public has access to a multiplicity of information sources is a governmental

purpose of the highest order, for it promotes values central to the First

Amendment.”); Turner II, 520 U.S. at 189 (“promoting the widespread

dissemination of information from a multiplicity of sources” is an important

government interest); see also Associated Press v. United States, 326 U.S. 1, 20

(1945) (“[T]he widest possible dissemination of information from diverse

and antagonistic sources is essential to the welfare of the public.”).

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